Quinn v. Moss

45 Neb. 614 | Neb. | 1895

Norval, C. J.

This action was brought by Samuel R. Moss against Edward Quinn, upon a written contract of guaranty for the payment of a bill of cigars sold by the plaintiff to one B. C. Foley. A verdict was returned for the plaintiff, and upon it a judgment was rendered. The defendant prosecutes error.

The plaintiff below is a manufacturer of cigars at Lancaster, Pennsylvania. In February, 1890, he sold, through his traveling salesman, one Rosenstine, to one B. C. Foley, on sixty to ninety days’ time, the following bill of cigars : 5.000 New Arrival, at $15; 10,000 Otella, at $23 ; 10,000 La Rosa De Key West, at $23; 5,000 Sweet Buds, at $15. The following written guaranty was, at the time of the purchase, executed by the defendant and attached to the bill of goods :

“I hereby guaranty the payment of the above bill bought by B. C. Foley, Omaha, Nebraska, of S. R. Moss, Lancaster, Pennsylvania. Edward Quinn.”

One of the defenses interposed is that after the guaranty was given Foley and Rosenstine changed the contract by Abe terms of which a new and different selection of cigars was made, and under which the cigars were furnished Foley. The evidence shows that after the signing of the contract it was agreed between Foley and Rosenstine but 5.000 Otella cigars should be sent and in lieu of the other 5.000 of that brand there should be shipped an equal number cf Key West Extras; that 5,000 Three for a Quarter were substituted for the same number of the brand La Rosa De Key West. The goods were furnished and delivered in accordance with this arrangement. There was no change in the prices of the cigars or the aggregate amount of the bill. The plaintiff, by several witnesses, introduced evidence tending to establish that the 5,000 Key West Extras furnished were of the same quality, style, and make as the Otella, except the label on the box, and that in quality and in every other particular the 5,000 Three for a Quarter which were sent were the same as the La Rosa De Key West. There is an entire lack of any evidence that the brands under which cigars are put up have any special or commercial value. If they have any such value it is a matter of proof. Certainly it is not a matter of which the court can take judicial knowledge. The only change made from the original selection, according to the proof submitted by the plaintiff, consisted in the brands or labels placed upon the boxes, and in the absence of any showing that brands affected the sales of the cigars, we cannot say that the original contract was in any material respect altered or changed. There being no substantial change in the agreement, it follows that the guarantor was not released from his liability. (Fisherdick v. Hutton, 44 Neb., 122; Feustmann v. Estate of Gott, 32 N. W. Rep. [Mich.], 869.)

At this point we may as well dispose of the assignment that the verdict is not sustained by the evidence. It is argued that the cigars delivered to Eoley by the plaintiff below were not of the quality promised or equal to the samples from which the selections were made. There is an irreconcilable conflict in the testimony as to whether the cigars sent to Foley were of the kind and quality contracted for. The testimony of the defendant's witnesses is to the effect that the goods were not according to the contract, while the testimony on behalf of the plaintiff tends to show that the cigars delivered were of the style, quality, and kind purchased. It is true that the brands of some of the cigars delivered were different from those described in the original agreement; but, as we have already seen, this variance was immaterial and did not affect the validity of the contract. The jury by their verdict have said that Foley got the goods selected and purchased, and their finding is not without ample evidence to support it.

Another assignment is that the court erred in excluding testimony offered by the defendant below to show that. at the time the goods were purchased and the guaranty given, the plaintiff agreed the cigars would be union made and union labeled. This testimony was properly excluded, as its admission would have been a clear violation of an elementary rule of evidence, to the effect, that parol contemporaneous evidence is inadmissible to vary or contradict the terms of a written contract. The order for the cigars was a written one, signed by Eoley; and the guaranty was likewise in writing. The purpose of the offered testimony was to add to or engraft upon the written contract a stipulation qualifying the terms thereof. Under the authorities such evidence was not admissible. (1 Greenleaf, Evidence, sec. 275; Hamilton v. Thrall, 7 Neb., 210; Dodge v. Kiene, 28 Neb., 216; Kaserman v. Fries, 33 Neb., 427; Nichols v. Crandall, 43 N. W. Rep. [Mich.], 875; Brintnall v. Briggs, 54 N. W. Rep. [Ia.], 531.)

Complaint is made in the brief of certain other rulings of the trial court on the admission and exclusion of testimony, but they will not be reviewed, inasmuch as the rulings are not assigned with sufficient particularity in the petition in error, the assignments being as follows:

“8. The court erred in refusing to permit the defendant to give to the jury certain other material and important evidence on his part, as fully appears in the record of the evidence kept by the official reporter, and which refusals were excepted to at the time by the defendant-, as is shown’ by the record.

“9. The court erred in permitting the plaintiff below to give certain evidence to the jury on his part, against the objection and exception of the defendant, all of which appears in the record of the evidence as kept and reported by the official reporter.

“10. And for other and manifest reasons appearing of record in the case.”

These assignments are too general and indefinite to present any question to this court for review. (Wanzer v. State, 41 Neb., 238; Kirkendall v. Davis, 41 Neb., 285; Bloedel v. Zimmerman, 41 Neb., 695; Wonderlick v. Walker, 41 Neb., 806; Wiseman v. Ziegler, 41 Neb., 886.)

The alleged errors in giving instructions are grouped in one assignment in the petition in error, and in like manner the alleged errors in refusing requests to charge are grouped in the petition in error. Upon due consideration of the instructions given we find that one or more is free from criticism and that at least one of the instructions refused was faulty. Under the well settled rule the assignments, relating to the instructions will be overruled. The judgment is

Affirmed.