133 Ky. 321 | Ky. Ct. App. | 1909
Opinion op the Court' by
Affirming.
On July 10, 1905, the appellant company sold to the appellees a threshing outfit, consisting of an engine and separator, for $1,863. For this sum the appellees
In a reply all the allegations of the answer were denied, and it was averred that the agent had no authority to make any agreements or representations concerning the machinery or the work it would perform, and that the entire contract between the parties was in a writing, which provided in part that “the machinery is purchased upon and subject to the following mutual and interdependent conditions, and no other, viz.: It is warranted to be made of good material and 'durable, with good care to do as good work under same conditions as any made in the United States of equal size, and rate and capacity, if properly operated by competent persons, with sufficient steam or horse power, and the printed rules and directions of the manufacturers intelligently followed. If by so doing after trial of ten days by the purchaser said machine shall fail to fulfill the warranty, written notice thereof shall at once be given to J. I. Case Threshing Machine Company, at Eacine, Wis., and also to the agent through whom received, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall he given to said company to send a competent person to remove the difficulty, the purchaser rendering necessary and friendly assistance ; said company reserving the right to replacé any defective part or parts; and if then the machinery cannot he made to fulfill the warranty the part that fails is to be returned by the purchaser free of charge to the place" where received, and the company notified thereof; and at the company’s option another substituted therefor that shall fill the warranty," all the notes and money for such part irnme
It will thus be seen that the issues raised between the parties may be resolved into two propositions. The purchasers’ contention is that they only made a conditional purchase, and that under it they’were not obliged to take or pay for the machinery unless it fulfilled the representations made before the writings were executed, and that, pending the test tó be made for the purpose of ascertaining whether or not the machinery was satisfactory, the notes were to be held by the agent of the company, and if the machinery proved satisfactory were to be delivered by him to the company; if it did not prove satisfactory, they were to be returned to the purchasers. On the other hand, the company’s contention is that no agreement of this kind was made, and that the only contract was
The evidence upon the principal issue was very conflicting; but if no other error was committed, there is not sufficient disparity between the evidence and the finding of the jury to justify us in holding that the verdict was not. supported by the evidence, so that we will proceed" to consider the legal questions raised by counsel for appellee.
In Wisdom v. Nichols & Shepard Co., 97 S. W. 18, 29 Ky. Law Rep. 1128, and the cases therein cited, it was held that, under a contract similar to the written contract relied on by the company in this ease, the rights and remedies of the parties were to be determined by the contract; the court saying: “Contracts similar to this have been before this court in a number of cases, and it has uniformly been ruled that, when the parties to a contract have agreed upon the warranties and remedies that accrue upon a breach of them, these remedies constitute the only relief in this particular that the purchaser has, and he must look to his contract and be governed by its stipulations.” But the principle laid down in this and the
It will thus be seen that under this instruction the jury were directed to find for the company, unless they believed that the agent induced the purchasers to sign the papers under an agreement that he would return them in the event the machinery did not fulfill the representations the agent made concerning it. Generally, it is proper to submit to the jury instructions that present the theory of the case presented by the pleadings of each of the parties; but when, as in this-case, the jury were told that they must find for the company unless they believed the agreement in respect to the execution of the notes was entered into, every other issue except this was eliminated
Did the agent have authority to make the agreement-relied on by the purchasers? It is earnestly argued by counsel for the appellant that the agreement made by the agent, assuming that one was made, was in excess of his authority, and, aside from this, contained representations and warranties that it was expressly provided in the written contract no agent should make. But, the agreement made by the agent did not undertake to vary or contradict the writing. It was entirely independent of it. The purpose and effect of the evidence respecting the agreement was to show that no contract was in fact entered into— that whether it became effective or not depended entirely upon the performance of certain subsequent conditions. The execution of the writings and their delivery under the agreement did not constitute them a contract, because they were not to become operative until certain conditions were performed. If the conditions upon which the writings were -executed and delivered to the agent were never fulfilled, the contract did, not become operative or binding upon the purchasers, and so it was admissible to show by parol evidence the antecedent agreement under which they were delivered. This evidence did not vary or contradict the writings, but only went to show that no contract between ■ the parties ever went into effect, and its admissibility is fully supported by the follow
It is next insisted that the delivery of the writings to the agent of the company was in fact a delivery to the company itself. The argument is made that a writing intended .as an escrow, or to take effect upon the performance of a condition subsequent, must be held by a. third person, and that the delivery of it to the party to whom it is executed or his agent destroys any parol agreements respecting the terms or conditions under which the writing was to become operative. It must be conceded that the ancient rule was as contended for by counsel for appellant. Bouvier’s Law Dict; title “Escrow”; Blackstone, vol. 2, p. 307; Worrall v. Nunn, 5 N. Y. 229, 55 Am. Dec. 330; Curry v. Colburn, 99 Wis. 319, 74 N. W. 778, 67 Am. St. Rep. 860; 16 Cyc. 573; 11 Am. & Eng. Ency. of Law, p. 339. But the better authority is to the effect that wheh the rights of no third parties intervene, and there is nothing inconsistent with the agent’s duty to his principal in holding the paper
There is a wide difference between a delivery to an agent, as under the circumstances of this case, and a delivery to the adverse party. When a writing, fully executed, is delivered .to the party for whom it is intended, the other party, in the absence of fraud or mistake, will not be permitted to set up either an antecedent or a contemporaneous parol agreement that will contradict or vary the writing, which is to be treated as the whole contract between the parties and the best evidence of what their agreement was. If an executed 'and delivered paper could be explained away, or contradicted by parol evidence, the integrity of every writing would be placed in jeopardy, and the party who, after its execution, became dissatis
Several Kentucky cases are relied upon by counsel. in support of the proposition that a paper to .be an escrow, must be placed in the hands of a third party, but a careful reading of these cases will show that they are not in conflict with the views expressed in this opinion. We have only extended the rule announced in those eases to embrace agents who are deemed to occupy the relation of third parties to the transaction. No question of agency arose in the cases relied upon, and the court, merely following the strict common law. rule, announced that an escrow must be delivered to a third party, and that, if delivered to one of the parties, it ceased to be an escrow, and its terms could not be contradicted or varied by contemporaneous parol expressions. In Wood v. Kendall, 7 J. J. Marsh, 212, the court in a dictum said that the obligation in controversy could not have been an escrow after its delivery to the obligee. In Wight v. Shelby R. Co., 16 B. Mon. 5, 63 Am. Dec. 522, the court, in holding that a subscription paper delivered to one of the parties to the paper could not be treated as an escrow, said: “It must be placed in the hands of a third party, by tbe party making it, to be delivered to the other party on the happening of a specified
There being no substantial error in the record, the judgment is affirmed.
Petition for rehearing by appellant overruled.