Hull v. Brown, 35 Wis. 652

Hull v. Brown

35 Wis. 652 | Wis. | 1874

Cole, J.

There can be no doubt about the correctness of the legal proposition stated in the brief of counsel for the defendant, viz: that parol testimony is inadmissible to vary, contradict or add to a contract which has been reduced to writing, and that, in the absence of all allegation of fraud or mistake, it will be presumed that the written agreement expresses the final intention of the parties upon the subject matter of the contract. It is needless to remark that this rule of evidence is elementary. And therefore it is entirely clear, that if the plaint*657iff had .brought an action against Gunnison & Sherman, he would be bound to show a breach of the written contract set out in the answer, in order to recover. In that case, the written order would prevail over any verbal contract claimed to have been made by the plaintiff with their agent contemporaneous with the giving of this order. But the plaintiff is not seeking to recover upon a contract made with Gunnison & Sherman, but upon one made with the defendant personally, upon which the latter alone is liable. . It is the individual obligation of the defendant which the plaintiff seeks to enforce ; consequently the rule above alluded to can have no application. ■Whether or not the plaintiff made the parol contract with the ■defendant as he claims, was a question of fact upon the evidence. And as the jury found in favor of the plaintiff on that issue, that the contract was made with the defendant personally and not with him as agent of Gunnison & Sherman, all inquiry upon that point is foreclosed. It may also be remarked that the attempt is not to hold the agent liable for the default of his principals upon a contract made within the scope of the agent’s authority, and the law of principal and agent cannot enter into the case under the verdict. These observations bring us to a consideration of the question whether the defendant’s undertaking was void under the statute of frauds.

It is claimed that the promise of the defendant was really an agreement to answer for the default of the manufacturers of the cultivator, Gunnison & Sherman, and, not being in writing, expressing the consideration, was void. A careful examination of the facts of the case, as found by the jury under the instructions of the court, will show that .this view is incorrect.

According to the plaintiff’s version of the transaction, he dealt with the defendant as the real party to the contract; bought the cultivator of him, giving, at the time the machine was delivered, his note for the purchase money, which note was made payable to the order of Gunnison & Sherman, upon the distinct agreement and promise of the .defendant,, that if the *658machine did not upon trial prove satisfactory, or answer the recommendation, the plaintiff should return it to the railroad station, and the defendant would give him back the-note, or reimburse him in case he was obliged to pay it. This-was doubtless the contract which the jury found was entered into between the parties. And it seems to us very evident that this was not a promise by the defendant to answer for the default of another, but was an original undertaking made upon a valuable consideration. It was in the nature of a contract of indemnity, a promise to the plaintiff to return his note if the machine did not work to his satisfaction, or relieve arid save him harmless from the payment of it himself. There is no-ground for saying that Gunnison & Sherman had entered into-any such contract, or had undertaken to perform any such duty. The contract of the defendant was not collateral to any liability which they had assumed. By their contract, they, in substance, warranted the machine to be well made, of good material, and to do as good work with proper management as any machine used for the same purpose; and if, after a trial of one day, the machine did not so perform, upon the plaintiff’s giving'immediate notice to them or their agent, if they failed to-make it work as warranted, on the immediate return of the-machine to them free of charge, they agreed to return the money or note given in payment for the machine. By the defendant’s contract, as found by the jury, if the machine did not on trial work to plaintiff’s satisfaction, the latter had the right to return it to the railroad station, when the defendant, was to deliver him his note, or save him harmless from its payment, or pay the note himself. The defendant and Gunnison & Sherman were not concurrently liable for the same default, debt or miscarriage. If the machine did not do good work after a trial of one day, with proper management, immediate notice was to be given Gunnison & Sherman, and if they failed to make it work as warranted, then the machine was to be returned, and the note or money given for it was to be restored. *659This is quite different from tbe defendant’s contract, who stipulated for no notice, nor any time of trial. The duty which Gunnison & Sherman undertook to perform in respect to the machine was not the same as that which the defendant assumed, and the contract of the latter, in no just sense, was a promise to answer for the debt, default or miscarriage of another, within the statute. It was, as we have said before, an original undertaking, made upon a valuable consideration and to subserve the business or pecuniary purposes of the defendant. It appears that he was selling these machines on commission for the manufacturers, and he says he “ wanted to place one in that corner of Johnstown,” in order, doubtless, to bring them to the notice of the farmers in that neighborhood. And he was willing, if the plaintiff would purchase the machine of him, in the event it did not prove satisfactory on. trial and should be returned, to indemnify the plaintiff against the liability on the note executed to Gunnison & Sherman, and to relieve him from its payment in case he could not restore the obligation. It was a primary liability, and is quite analogous in principle to the contract entered into in Vogel v. Melms, 31 Wis., 306; Young v. French, ante, p. 111; Aldrich v. Ames, 9 Gray, 76, and that class of cases. See also Mountstephen v. Lakeman, Law Reports, 7 Q. B., 196. The jury having found that the defendant made the contract as claimed by the plaintiff, we think it was an original, independent liability, and cannot be deemed collateral to the undertaking of a third party. This view disposes of the case.

By the Gouri. — The judgment of the circuit court is affirmed.