146 Ill. App. 350 | Ill. App. Ct. | 1909
delivered the opinion of the court.
The first question to be determined in this case is, whether or not there was a contract in writing between the parties, as contended by the plaintiff, defendant in error, or whether the contract was partly in writing and partly oral, and hence an oral contract, as contended by the defendant, plaintiff in error.
Upon a careful consideration of all the evidence we are of opinion that the letter of September 2, 1903, as modified by Kittredge and signed by him, was, and was intended by the parties to jie, their written contract for the sale and purchase of the bronzing machine. Up to the time of the presentation of that letter to Kittredge by Kasch and his endorsements on each page of the letter there was no meeting of the minds of the parties, and no contract between them. It is evident, we think, that the plaintiff prepared the letter carefully, and with the purpose of expressing by its terms what the parties, in their talk and correspondence, had manifested a willingness to agree to. The plaintiff was not content with the mere precaution of expressing in the letter in great detail what it would and would not do, and forwarding the letter by mail directly to the defendant. It adopted the further precaution of forwarding the letter to the manager of its Chicago office with instructions to submit it to Kittredge for his perusal, and to obtain from him his modifications thereon and his approval in writing. This was done; and when Kittredge had indicated in writing his approval thereon it was, in our opinion, for the purpose of making the paper express the assent of the defendant in writing to the agreement so prepared as the entire agreement between -the parties for the sale and purchase of the machine.
It follows legally that this merged all prior negotiations, letters and telegrams in the written agreement thus formulated and signed; and all extrinsic evidence of oral or written negotiations became incompetent, immaterial and irrelevant for the purpose of contradicting or modifying the written agreement. Graham v. Sadlier, 165 Ill. 95.
It was contended, however, on the trial, and it is contended here by the defendant, that the terms “No. 10 model bronzing machine” as used in the agreement, does not mean or refer to the No. 10 Century Model Bronzing Machine, a patented article, described in the pamphlet of the plaintiff containing a diagram of the same, and then being manufactured by the plaintiff and sold by it by that trade name, but that it means a new machine then about to be manufactured by the plaintiff, upon a new model, for which model plans and specifications were then being prepared by the plaintiff. For the purpose of determining the meaning of these words in the contract the trial court properly admitted the previous negotiations between the parties.
We have examined the evidence in the record bearing upon the intent and meaning of the words “No. 10 latest model,” as used in the contract, and we are of opinion that the evidence sustains the finding and conclusion of the trial court that the parties had in mind and referred to the No. 10 Century Model Bronzing Machine then being manufactured and sold by the plaintiff in the contract of September 2, 1903, with the modifications and additions specified therein.
In the first place the evidence shows without substantial contradiction' that the plaintiff had never gotten out any other cuts or models than these of this Century Model, and had not at that time planned any later model; and that the plaintiff had' at many different times prior to the date of the contract sent to the defendant a descriptive pamphlet showing a cut or diagram of the No. 10 Century Model Bronzing Machine, and likewise containing information as to its weight, etc. ®
Second. Kasch testifies that when he first talked with Kittredge about selling to defendant a bronzing machine, he—Kasch—took with him a circular showing plaintiff’s No. 10 Century Model Bronzing Machine, and showed Kittredge the circular and Kittredge had it before him while they were conversing. Walter Lang testifies that the conversation which he had with Kittredge in June, 1903, was about the No. 10 Century Model Bronzing Machine and that Kittredge then had in his possession the circular of plaintiff containing the diagram of that machine theretofore manufactured by the plaintiff. Muller testifies that he talked with Niemes, defendant’s - superintendent, in New York about the No. 10 Century Model Bronzing Machine, and that all their conversation was about that machine which the plaintiff was then building. Ford’s testimony corroborates Muller’s testimony as to the machine talked about with Niemes in New York in June, 1903. The telegram of the defendant to the plaintiff of July 31,1903, reads: “How quick can you ship number ten Bronzer?” The reply of the plaintiff dated August 1,1903, says: “Eight weeks best we can do on No. 10 Bronzer.” The letter of August 3, 1903, describes it in the same way. The contract itself says, when speaking of the driving pulleys: “This is all we can do on our machine as we now build it.”
Third. Walter Lang denies that he said to Kittredge at any time that the plaintiff was then preparing a new model, or a new bronzing machine. The voluminous correspondence between the parties nowhere speaks of a new bronzing machine or a new model of such a machine which the plaintiff was' about to build. If Niemes told the truth to Kittredge when he returned from New York he must have informed bim that he had been unable to see any new model of a machine which the plaintiff was about to build, or any drawings, or plan or diagram thereof, for the plaintiff was not getting out, and had not made, any such model or machine, or drawings or designs for the same, according to the uncontradicted evidence in the record. All the correspondence shows that Kittredge had an intimate knowledge of the various parts of the machine which he was proposing to buy, and this is not consistent with the idea that he was buying a new and different machine not theretofore constructed or used and not known to anyone but the plaintiff.
Our conclusion from the evidence is that the parties had in mind the No. 10 Century Model Bronzing Machine as theretofore manufactured by plaintiff and no other machine, and that the words used in the contract applied to that machine and described it.
The defendant urges that the plaintiff, by falsely representing the material fact that the machine was stronger and better throughout than the old Emmeriek & Vonderlehr machine which the defendant had, avoided the contract. That Lang made such a representation or expressed such an opinion to Kittredge, he did not deny in his testimony. But, whatever was the nature of such. statement, whether it was a warranty or a mere opinion, there is no evidence in the record showing that it was untrue; and we think the court did not err in refusing to hold the propositions submitted based on such statement.
The defendant presents in its evidence several objections to the machine as delivered. The first suggestion is that the belts slipped off and had been caught in, and cut by the gearing of the machine before its delivery, because the pulleys were not properly made to prevent that result. The testimony of Muller and Ford shows that there were no cuts in the belt at the time of shipment. Kittredge admitted in his testimony that the pulleys had proper flanges.
Another objection to the machine delivered was that there was a number of cut-outs filled with Babbit metal in the cylinder. There is no controversy as to this fact in the record. The evidence shows, however, that it is impossible to cast a cylinder as large as that required on the machine in question free from defects of this character, and that the particular cylinder on this machine was better in this respect than the average cylinder used on the No. 10 Century Model machines. Ford further testified that he had never seen plugs such as those put in the cylinder of the machine delivered work out or become loose; and that the life of the plugs in the cylinder was as good as the life of the cylinder itself. The testimony, we think, on this point tends to show that the cylinder in question was as good and as durable in practical operation as a cylinder without plugs.
In Misner v. Granger, 9 Ill. 69, the court say on the general proposition here involved, at page 75: “Again, generally, where a manufacturer sells his goods or wares, and nothing is said about the quality, he is held to warrant them to be of a fair ordinary quality, according to their appearance; as, if a manufacturer sell an ax and upon trial it prove to be so hard as to be unfit for use, then the vendor is responsible for the defect. To this there may be qualifications, as when the article is of such a character that ordinary skill cannot ordinarily produce a good article, but success depends in a great manner upon chance.” We think upon the evidence in the record that the cylinder was at least of the fair average quality according to its kind and a merchantable article. Though it was not an absolutely perfect cylinder, it was as good as can ordinarily be made by the best known methods of manufacture.
The defendant, plaintiff in error, contends that the construction of the fountain was not what it should have been.
In defendant’s letter of August 28,1903, to plaintiff, objection was made to the fountain used by plaintiff. This point was accordingly covered by the contract in the following language: 6‘We will not be able to make any alterations on the fountain, as these are standard, and we would not care to make this fountain other than it is at present. ’ ’
This objection with a number of others mentioned in plaintiff in error’s brief can be considered as valid and worthy of consideration only upon the theory that there was an implied warranty that the machine was reasonably fit for the purposes for which it was manufactured. This is not the law. Where an article is sold by a formal written contract, as we think is the case here, and the contract is silent on the subject of warranty, no warranty made at the same time or prior thereto can be shown, since the writing is supposed to embody the entire contract; and for the same reason, no additional warranty can be engrafted on the contract as written. Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510; Telluride Power Co. v. Crane Co., 208 Ill. 218-227; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631; Case Plow Works v. Niles & Scott Co., 63 N. W. 1013. And when an article known and described under its patent or other trade name is ordered of a manufacturer, whether ordered for a particular purpose or not, if the known and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Seitz v. Brewers’ R. Co., supra; Prideaux v. Bennett, 87 Eng. Com. L. R. 613; Mason v. Chappell, 15 Gratt. 572; Peoria Grape Sugar Co. v. Crane Co., supra; Iroquois Furnace Co. v. Wilkin Manf. Co., 181 Ill. 582, 598, 599.
During the progress of the trial the defendant offered evidence tending to show that the driving shaft of the machine delivered to it was turned down or cut out at a certain point, thus making the shaft imperfect and weak. The plaintiff, upon affidavit showing that it was surprised by this testimony, and other grounds for the motion, moved the court for a suspension of the trial to enable it to take the depositions of certain witnesses in Rutherford, New Jersey, upon that question. The court granted the motion and entered an order fixing the time and place for taking the depositions of the witnesses named upon the question of the condition of the driving shaft and the dusting roller belts in the machine shipped to defendant by the plaintiff, and giving the defendant the right to cross-examine the witnesses and to have two witnesses to be selected by it examine the machine and take their testimony respecting the driving shaft. Pursuant to this order of court the depositions of the witnesses were taken and subsequently were read in evidence upon the resumption of the trial.
The record shows that on the examination before the commissioner, after the plaintiff’s witnesses had testified that the machine was standing in the same place where it had stood since its return by the defendant and that nothing had been done on it, and its parts were in the same condition as when constructed and shipped and returned to the factory, defendant’s counsel requested that counsel and the witnesses whom he proposed to call have an opportunity at once to examine the machine and identify it. Thereupon the commissioner and counsel and witnesses proceeded to the machine shop and examined the machine. Upon the resumption of the examination of the witnesses, counsel for the defendant expressed his satisfaction with the opportunity given to make the necessary examination of the machine as to the driving shaft and dusting roller belts, and admitted of record that the driving shaft then in the machine which they had examined was not cut out or turned down, and that the belts on the machine did not touch or interfere with the driving shaft. The commissioner, however, refused, upon objection of plaintiff, to permit defendant to show by its witnesses that the machine had been stripped of certain parts and changes had been made thereon and certain facts relative to the identity of the machine, such as fractures in the frame, in regard to which evidence had been theretofore offered on the trial.
It is urged that there was error in not permitting the examination to extend to the facts and features of the machine designed to be brought out by the questions propounded to the witnesses, for the reason that the identity of the machine examined was necessarily within the terms and scope of the order of court under which the testimony was taken. We think, however, this contention of defendant has no substantial foundation, and that no substantial right of the defendant was denied or violated by the refusal of the commissioner to extend the examination beyond the terms of the order of court.
The evidence in the record greatly preponderates in favor of the plaintiff to the effect that the driving shaft was not turned down or cut out as the evidence offered by the defendant tended to show. While we have read the evidence on this subject carefully, we cannot take the time to analyze and discuss it. The testimony on this subject cannot be reconciled in any way. The evidence of the defendant is inherently and mechanically improbable and therefore arrests belief.
We do not think the evidence shows a rescission of the contract by the parties. The offer contained in the letter of plaintiff of November 27, 1903, was not accepted by the defendant. Another proposition was made in plaintiff’s letter of January 14, 1904, but this offer was not accepted. The evidence tends to show that both offers were rejected by defendant. The evidence also shows that prior to the return of the machine by defendant it was notified that plaintiff would not accept the machine.
Upon a review of the evidence in the record we are of opinion that the preponderance of the evidence sustains the judgment rendered, and on the merits of the case it should be affirmed.
It is urged by the plaintiff in error that the trial court erred in its holdings on the propositions of law appearing in the record. We are convinced that the trial judge understood and applied, the law correctly to the facts proven by the evidence, and even if some of the propositions of law held by the court are not accurately stated or some of the propositions refused by the court are strictly correct, such errors could not affect the result here, if the judgment, upon a consideration of the whole record, is right. Stone v. Mulvaine, 119 Ill. App. 443, 456; Chicago Hotel Co. v. Baumann, 131 id. 324, 329; Lanter v. Hartman, 95 id. 80; Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9. It is unnecessary, therefore, for us to discuss the rulings of the court on the propositions of law.
Finding no reversible error in the record the judgment of the Circuit Court is affirmed.
Affirmed.
