Phelps & Bigelow Windmill Co. v. Piercy

41 Kan. 763 | Kan. | 1889

Opinion by

Holt, C.:

The defendant insists that the written instruments do not constitute the entire contract between the parties, but in ¿ddition thereto it was agreed that after defendant was satisfied with the working of the mill, then these written agreements should be put in force, and not till then. Plaintiff complains of the introduction of testimony tending to show there was such an oral agreement. We are not certain that the testimony introduced would have established it. We will state, however, that it was error to admit testimony of such a character. There was a special and distinct provision in both the written instruments constituting the agreement about the time given for a trial of the windmill. The testimony offered would have been inadmissible, for the reason that it would have changed the contract on a point which had been definitely agreed upon between the parties and reduced to writing. Taking the statement signed by Kelsey and the order of defendant together as the entire agreement, we can, we believe, correctly arrive at the intentions of the parties. Plaintiff, through its agent Kelsey, states that it had let defendant have an I. X. L. windmill on trial, and defendant in his order states “if the windmill does not work well for thirty days after its erection,” he was to notify the company and give it thirty days after receipt of such notice to remedy any defects. Now it is evident, construing these written instruments together, that the notice mentioned in the statement of Kelsey had reference to the notice stipulated for by Piercy. The statement signed by Kelsey was given to Piercy evidently for the purpose of furnishing him with evidence that he might retain in his possession, that there was such an agreement in the order he had made. We are unwilling, under this belief, to allow parol testimony to contradict or vary these mutual stipulations. It will be remembered that this statement of Kelsey and the order of defendant were made at the same time and concerning the same transaction, and, construed together, make the contract. It is also further provided in terms in the order of Piercy, that it was understood his order embodied all their agreements of any nature whatsoever. The fact that Piercy was anxious to notify the company within thirty days of the failure of the mill to do satisfactory work, and to ask the company to take it back, would indicate that he at that time believed that the time of trial was agreed to be thirty days as mentioned in his order.

Construing this contract in this way, it would have been the duty of the defendant to point out to the agents of plaintiff, when they came to his farm, the defects which he asked the company to remedy. His failure to do so was an excuse for the company for not remedying them. It is probably true in this case that the grinding and churning attachments were practically valueless, and it is urged by the attorneys for plaintiff that after striking out the amount they were listed for, they would be willing to have this court give judgment for the balance. The verdict of the jury was a general verdict for the defendant, and without special findings of fact we could not render a judgment as attorneys for plaintiff desire. Moreover, it is fairly deducible from the evidence that the grinder and churn, although called attachments, did not work by reason of some imperfections in the mill — either from the lack of a governor, or possibly the failure of defendant to understand its use, or the lack of power in the mill; hence it would hardly be a fair construction of the contract to compel the defendant to pay for the full value of the mill less these attachments when the attachments themselves may have been without defect, but did not perform the work intended for them to do because of some defect in the mill itself or some part of it.

The plaintiff asks for a reversal of this case for the reason, among others, that the verdict is contrary to the evidence. We believe upon the facts in the case, which are substantially uncontradicted, and the testimony of defendant himself, and under the construction we have given this contract, that it was entitled to a new trial. It is certain that the mill was of some value, and the defendant failed to point out the defects in the mill or its attachments within the time provided in his order for the same.

We therefore recommend that the judgment be reversed, and a new trial granted.

By the Court: It is so ordered.

All the Justices concurring.