257 P. 211 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *691 Plaintiff brought suit for the value of goods, wares, and merchandise sold to the defendant, and appeals from a judgment rendered for the defendant.
There is substantially no difference in the contentions of the parties as to the actual facts in the case. Without objection on the part of plaintiff, defendant offered evidence tending to prove an oral contract of warranty. This testimony was uncontradicted by plaintiff. It appears from the evidence that on the sixth day of February, 1922, *692 a salesman for the Inner Shoe Tire Company called upon the defendant. They discussed certain tire reinforcements, which were denominated "Red Innershus." The quality and salability of these Innershus were discussed between them and, among other things, the fact that respondent was engaged in the business of retailing automobile supplies, accessories, and equipment, and had acquired therein a goodwill and a reputation among the purchasers of such articles for furnishing his customers with reliable and trustworthy goods, and that respondent desired to purchase only what is known in trade parlance as "quality goods," to be offered and sold to his customers, and in this connection a general advertising scheme was to be undertaken whereby these goods were to be offered to such customers and prospective purchasers under certain representations to be made by means of large placards, circulars, and otherwise, including among others the representations that when said Innershus were cemented into new casings they would prevent punctures and all blow-outs, and would last until the casings should be entirely worn out, even though such casings should travel a distance of twenty-one thousand miles; that said Red Innershu would never fail in a new tire, and would give added strength to worn tires; that Red Innershu was blow-out proof. It was further represented by said salesman to respondent that the foregoing representations could be made to respondent's customers truthfully and without harm to respondent's said reputation, and that said Innershus would be accompanied by certificates of guaranty. These certificates of guaranty contained the following language:
"Should this Red `Innershu' fail to give you these results we hereby agree to furnish you with a new one Free of Charge upon receipt of the old `Innershu' prepaid to us with this Certificate of Guarantee." *693
Respondent gave his order for eight dozen of said Red Innershus, aggregating the total price of $511.20. The order slip signed by the respondent contained a printed statement as follows: "No agreements or conditions, verbal or otherwise, other than herewith mentioned, will be recognized." The order slip did not contain any memorandum, nor mention of any representation or guaranty. Thereafter the goods were received by respondent, but sales of some of the Innershus, together with further examination, proved them to be defective, blow-outs occurring immediately upon their being used. Respondent attempted to dispose of the Innershus upon the market, but failed, and respondent returned the whole consignment, with the exception of those which had been sold by him and not replaced. Appellant refused to accept the returned Innershus, and brought action for the full purchase price, except the price of one of the returned Innershus for which respondent was given credit.
[1] Appellant contends that the written contract of guaranty contained in the certificate, as hereinbefore quoted, was the sole and exclusive remedy of the purchaser, and that all evidence which contradicts it or shows a different or other guaranty is not admissible. Accordingly, appellant insists that respondent's only remedy was to return any defective Innershus, with the demand that appellant furnish new ones therefor. It is elementary that the terms of a written contract cannot be modified or added to by evidence extrinsic of the writing. If this rule were held applicable to the instant case, not even the certificate upon which plaintiff relies would be admissible in evidence for the reason that the certificate is no part of the written order or contract signed by the respondent. [2] A party who permits a fact to be proved by incompetent evidence, without objection, waives all question of admissibility. (2 Cal. Jur., p. 267, sec. 84.) [3] In the application of the rule requiring one to object to the introduction of evidence, it has been held that a failure to object that parol evidence to vary the terms of a written instrument was admitted waives the objection, and the question cannot be raised for the first time on appeal. (Tebbs v.Weatherwax,
[10] Under the circumstances in the case at bar, there was an implied warranty by the manufacturer that the goods were free from any latent defect not disclosed to the buyer arising from the process of manufacture and that the merchandise was sound and merchantable, as well as an expressed warranty. The expressed warranty here is not inconsistent with the warranty implied in sections 1769 and 1771 of the Civil Code. In North Alaska etc.Co. v. Hobbs, Wall Co.,
For the reasons stated, it is ordered that the judgment be affirmed.
Houser, Acting P.J., and York, J., concurred.