69 Vt. 162 | Vt. | 1896
The action is to recover for cuts furnished in accordance with a written contract dated April 24, 1894, and for a breach of the contract by the defendant.
The contract.is in the form of an order, and is as follows: “The Pictorial League,” etc. “Gentlemen: Please furnish the undersigned with one cut and reading matter semimonthly to illustrate the Furniture and Draperies business in the City of Burlington, State of Vermont, only, for the term of one year from commencement, for which I agree to pay to your order at New York, the sum of one dollar and
Against the plaintiff’s exception, the defendant was allowed to give evidence tending to show that upon the occasion of giving the order, and before it was given, the agent represented that there would be sent by the plaintiff to the defendant, each time, before the cut was sent him, a sample sheet containing not less than ten samples, from which he could select one, and the cut for that sample would then be sent' to him; that the plaintiff did not perform this representation of the agent but sent cuts which the defendant did not want, and which were inferior to the sample exhibited by the agent. This was error. It was allowing a further stipulation resting in parol, made contemporaneously, to be added to the written contract. The order does not specify the quality of the cuts to be furnished. If the plaintiff was, at the date of the contract, executing cuts of a specific quality only, whether it could furnish cuts of lower qualityis not a question raised nor considered. If the plaintiff was then making cuts of different qualities, whether a latent ambiguity might not arise is not a question raised by the exceptions, nor considered.
Against the like exception of the plaintiff the defendant was permitted to show that the agent, on the same day, procured orders from persons in Burlington, engaged in
The defendant contends that these errors are rendered immaterial by the findings of the city court. This contention is not maintainable. From the statement in the exceptions, it appears, that the city court used this testimony, erroneously received, in making its findings, “that the representations were made by the plaintiff’s agent, and that the defendant gave the order relying upon them, and that the plaintiff has never complied with the terms of the contract, and furnished such cuts as the defendant had a right to demand.’’ This evidently means that the plaintiff did not furnish sample sheets as represented by the agent, and, therefore, the defendant had no opportunity to select the cuts. Hence the cuts furnished were not such as he had a right to demand.
Judgment reversed and cause remanded.