Hills v. Town of Farmington

70 Conn. 450 | Conn. | 1898

Hamersley, J.

Testimony as to the employment by the defendant of the architects who prepared the plans which were adopted by the defendant and incorporated into the written contract made by it with the plaintiffs’ intestate, was properly excluded as immaterial, unless it might come in as a part of the testimony supporting the verbal agreement alleged in the counterclaim. We think all this testimony was inadmissible. The parties had deliberately reduced their agreement to writing. There is no question of fraud or mistake. The defendant simply claims to add to the written contract a verbal warranty. It is well settled that a parol warranty cannot be superadded to a written contract of sale. Dean v. Mason, 4 Conn. 428, 431; Gilpin v. Atwater, 29 id. 93, 100.

In this respect the contract before us is not distinguishable from a contract of sale. The verbal agreement sought-to be proved is an integral element of the negotiations which the parties, upon reaching a final conclusion, put into writing ; and is not a separate agreement on a matter consistent with the terms of the written agreement. On the contrary, it contradicts that agreement. The verbal agreement, as alleged in the counterclaim and outlined in the offer of testimony, is that Mead agreed to build with a warranty for $10,500, being $2,000 more than the sum for which other contractors were ready to construct the building, and that the defendant “agreed to pay said extra price therefor, because of his (Mead’s) said representations, and in consideration of his said warranty and guaranty.” The written agreement details at length the obligations assumed by Mead for the consideration of $10,500, including the promise to finish said building agreeably to the drawings and specifications made by the architects (and annexed to the contract), to the satisfaction and under the direction of the architects, to be testified by a writing under their hands; the guaranty of skillful work and the use of proper materials; but not the warranty of the architect’s plan. It also details the covenants on the part of the defendant to pay to Mead at the time and in manner specified the sum of $10,500, “ in consideration of the covenants and agreements being strictly performed and kept by the party of the second part (Mead) as specified.”

This contract appears to contain the obligations assumed by Mead in consideration of the receipt of #10,500, and the rights acquired by the defendant in consideration of the payment of that sum.. It is presumed to contain the whole of that contract, and cannot be contradicted by parol testimony. Averill v. Sawyer, 62 Conn. 560, 568; Caulfield v. Hermann, 64 id. 325, 327. The probability of a town building-committee paying #2,000 to a contractor to warrant the architect’s plans for an #8,500 building, is a matter pertinent to the weight of the eYidence, but not to its admissibility.

The plaintiffs, by their denial of the counterclaim, put in issue thé facts therein alleged; and there may be a question whether they were not estopped from objecting to testimony in support of that issue. This question would not control the ultimate rights of the parties; it was not raised in the court below, and is not specifically assigned in the appeal; and therefore we do not consider it.

Counsel for the defendant claimed in argument that the special facts found by the court, support a conclusion that Mead had by his conduct before and after the execution of the contract, made himself liable for the incapacity of the architects. There is no occasion to detail these facts ; indeed the counsel urges them mainly in connection with the excluded eYidence. It is quite clear that the committee had much too great confidence in Mr. Mead; but it is equally clear that he did not assume the liability claimed. The judgment of the court is the legal conclusion from the facts found.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.