192 Mo. App. 287 | Mo. Ct. App. | 1915
Defendant is a corporation resident of the State of Minnesota and on the 3rd of May, 1913, it sold to plaintiff an “Auto Plow Tractor,” with attachments at the total cash price of $1875. The contract of sale with warranty was in writing. Plaintiff tried the plow on his farm and claimed that it failed to perform as warranted and that it was thereby worthless. He brought this action on the warranty alleging his damages at the price he paid and freight. He recovered judgment in the circuit court for $875.
There was a plea by defendant to jurisdiction of the person. This was based on the fact that the summons was served on one of defendant’s repair men, who came into the state to plaintiff’s farm to assist in finding out the cause of plaintiff’s complaints of the plow and in putting it in such order that it would work. Plaintiff conceived the idea of obtaining jurisdiction over defendant by serving this employee with a summons. The difficulty with defendant’s position, at this time, is that it has waived the point by a general appearance. After its plea to jurisdiction was overruled it applied for and obtained a change of venue from the court where the action was instituted to another circuit. This was such an appearance as waived the question of jurisdiction. [Julian v. Star Co., 209 Mo. 95; Houston v. Pulitzer Pub. Co., 249 Mo. 355.]
The petition alleges that the contract contained a warranty whereby “defendant warranted and agreed that said auto plow should pull and would pull two fourteen-inch breaker bottoms six inches deep without overloading engine to said plow.” At another part of the petition plaintiff alleges that in a conversation with defendant’s agent before the contract was executed he explained that the soil on his farm was “gumbo” and that “said agent at said time stated to this plaintiff that said plow would do the work called for by the warranties contained in said contract, and said agent at said time warranted to this plaintiff that said auto plow machine would pull two fourteen-inch breaker bottoms six inches deep in plaintiff’s land without overloading the engine to said machine.”
The contract introduced at the trial failed to sustain the petition and defendant’s demurrer to the evidence should have been granted. The contract under the heading of “Warranty,” in bold type, contains the following: “The Hackney Auto Plow Tractor is purchased and sold subject to the following warranty and agreement: That the Tractor is warranted against defects in workmanship and material.” The warranty and breach thus alleged in the petition relate to a totally different matter.
But it will be noted that the petition went beyond the written contract and alleged a verbal warranty
To allow parol evidence of a verbal warranty when the writing is silent would be to add a distinct provision to the contract; and to permit parol evidence of a different, or additional, warranty from that contained in the writing would be an inexcusable change in the contract. [Jolliffe v. Collins, 21 Mo. 338; Seitz v. Brewers Machine Co., 141 U. S. 510; Conant v. Nat’l Bank, 121 Ind. 323; Zanturjian v. Boornazian, 25 R. I. 151, 155; Detroit Ship Co. v. Comstock, 144 Mich. 516; Frost v. Blanchard, 97 Mass. 155; Bullard v. Brewer, 118 Ga. 918; McCormick Mach. Co. v. Allison, 116 Ga. 445; Battery Co. v. Ry. Co., 138 Iowa, 369; Buchanan v. Laber, 39 Wash. 410; Lower v. Hickman, 80 Ark. 505; Vierling v. Iroquois Furnace Co., 170 Ill. 189; Morgan Smith Co. v. W. P. & S. Co., 221 Pa. 165.] On this subject, it is said in Benjamin on Sales, sec. 621, that: “ Where the written salé contains no warranty or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter, by inference or implication.” In 1 Parsons on Contracts, 589, it is said in reference to the same subject that: “Where the contract of sale is in writing and contains no warranty, then parol evidence is not
But plaintiff seeks to avoid the force of this rule of law by the claim that the verbal contract in this case “was a collateral agreement, not contradicting the written contract, but explaining it. ’ ’ There is no branch of the law more liable to abuse, or rather misinterpretation, than that concerning verbal agreements collateral to written contracts. The law permits proof by parol testimony of a collateral agreement, rather as an exception under well-defined limits, but it must be admitted that some of the courts have enlarged the exception so as to entirely destroy the rule. The authorities above cited, while hot affirmatively mentioning oral collateral agreements, clearly show that such agreements cannot be allowed to affect a complete written contract.
Where parties have reduced their contract to writing’ and it is complete on its face, unless there be fraudj accident, or mistake, no evidence in parol can be received to add to, or subtract from, its terms under the guise of proving a collateral agreement. Parol evidence of a collateral agreement to be admissible must' not interfere with the terms of the contract, nor must it add to its obligations. The verbal collateral agreement must be independent and distinct from the written agreement and must not be inconsistent with it. And it must not be so closely connected with the transaction as to form a part of it. Therefore, whatever is embraced in the writing cannot be nullified, qualified, or added to by the collateral- agreement. [Tracy v. Union Iron Works, 104 Mo. 193 (affirming same case 29 Mo. App. 342); Seitz v. Brewers Machine Co., 141 U. S. 510; Slaughter v. Smither, 97 Va. 202, 206; McTague v. Finnegan, 54 N. J. Eq. 454, 460; Naumberg v. Young, 44 N. J. L. 331, 342.] Now a warranty in the sale of personal property is manifestly an important element of the contract. The vendor considers the
In Thompson v. Libby, 34 Minn. 374, 377, (affirmed in Wheaton R. Mill Co. v. Noye, 66 Minn. 156) the Supreme Court referred to loose statements sometimes made to the effect that where the whole contract is not reduced to writing though it purported to be complete on its face, parol evidence could be admitted to prove the part omitted, and said that: “to allow a party to lay the foundation for such parol evidence by oral testimony that only a part of the agreement was reduced to writing, and then prove by parol the part omitted, would be to work in a circle, and to permit the very evil which the rule was designed to prevent.” The court adds that “it is to be presumed that-the parties have introduced into it .every material item and term; and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed. The rule forbids to add by parol where the writing is silent, as well as to vary where it speaks.”
The Court, then, in speaking of an instance where the contract, as in this case,-contained a warranty, said (p. 379) that: “The common sense of men would say, and correctly so, that when on a sale of personal property, a warranty is given, it is one of the terms of the sale, and not a separate and independent contract. To justify the admission of a' parol promise by one of the parties to a written contract, on the ground that it is collateral, the promise must relate to a subject distinct from that to which the writing relates. (’
As already intimated, there are cases which have gone so far toward wiping out all protection in a written contract that a reference to them will be of service in showing the extent to which a few of the courts have been, led.
In Durkin v. Cobleigh, 156 Mass. 108, a vendor, by ordinary deed, conveyed land bounded on a street. The vendee, in an action for damages, was allowed to introduce evidence and maintain an action on an oral agreement, not found in the deed, that the vendor would build and grade the street so as to connect with a certain other street, and that he would cause city water to be put in the street, by a certain "time.
In Tennessee (Hines v. Willcox, 96 Tenn. 148), a verbal agreement was allowed as collateral, though there was a written lease. -In that case there is found a statement of a number of cases decided in that State, from which it would appear that little security is to be there gained by reducing a contract to writing.
It seems that the fact that a written agreement is silent as to the things' proposed, to be proved by verbal evidence is considered to be a' strong factor in favor of such evidence. Of course, if it were not silent and the writing was complete there would be neither necessity, nor temptation to repeat in words what has already been put down in writing. But it is difficult to understand why silence should be of controlling influence' in favor of such evidence. The inevitable effect of .such consideration would be to compel one to affirmatively set down in the writing all those things
This rule of evidence is very old. It came into existence from necessity. It recognizes the frailty of men and provides a means for stability of business by lessening the hazards of misunderstanding, real or affected. Two men desire to enter into a contract, each thinks of the other, one, or all, of three things: that he may have a bad memory, a poor understanding, or an easy conscience, which, under temptation, would allow him to commit perjury. Ought it to be said that there is no way whereby they may safely contract? Naturally they resort to a writing; must each labor under the ever present fear that when he calls upon the other for performance, he will be met with a claim that there were things agreed upon verbally, and not mentioned in the writing, which put other obligations upon him, or released obligations due to him. Things, which, in practical effect, destroy the value of his contract.
Mr. Freeman adds a valuable note to Green v. Batson, 5 Am. St. Rep. 194, a case making a distinction (where, perhaps there is none), between a sale of land by deed and a sale of personalty by contract. After reviewing some cases of the character just mentioned, where oral evidence was admitted under the
Plaintiff has furnished us an interesting brief with many citations. It is not possible, within reasonable limits, to enter into a detailed discussion of these, distinguishing them from the case before us. It is- quite true that the circumstances, situation and surrounding of the parties often may be shown to help in the interpretation of written • contracts which are not clear upon their face. But no such necessity exists as to -this contract of warranty. Its terms are specific and not to be misunderstood. So, as already stated parol evidence is admissable to show fraud, accident or mistake in the writing. But nothing of that kind is pretended in fact and no pleading of that kind was filed.
We find ourselves forced to interfere and hence reverse the judgment and remand the cause.