208 Ill. 218 | Ill. | 1904
delivered the opinion of the court:
The action in this case is not brought upon the contract between the Crane Company and Rhodes to furnish pipe to the latter for the pipe line he had contracted to erect for the Telluride Company, but the suit is against the latter company and L. L. Nunn, the general manager' of that company, (appellants here,) jointly, upon a contract for the sale of certain pipe at the time on cars at Ophir, Colorado, which had been shipped by appellee to Rhodes on his contract, which he, by reason of his insolvency,, was unable to perform, the pipe being thereby left upon the hands of appellee. Appellants contend that no joint contract by them is shown by the record. We do not think the position can be maintained. No plea in abatement or in bar was filed and no proof offered on the point, but by the stipulation of parties which was filed on the trial, the joint liability is admitted, and further discussion on the question is thereby rendered unnecessary.
It is again urged that the Appellate Court erred in holding that the letters of February 5 and 8 and the telegram of February 8, set forth in the foregoing- statement, constitute the entire contract between the parties, it being- insisted that the entire agreement is to be found in all the negotiations, oral and written, had between the parties, and that appellants had the right to show an express warranty of the pipe to them, j The questions as to what writings should be considered, and whether or not those considered constituted a written contract, and whether or not the written contract fully expressed the agreement between.the parties, were for the court. The rule is, that when the writings show, upon inspection, a complete legal obligation, without any uncertainty or ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included in the writings. ' The fact that a point has been omitted which might have been embodied therein will not open the door to the admission of parol evidence in that regard. (Seitz v. Brewers’ Refrigerating Co. 141 U. S. 510.) In the case at bar the pipe in question was on the cars at Ophir, where it had been consigned to Rhodes. Rhodes was unable to take and pay for it, and appellants began negotiating for its purchase with a view of completing the pipe line themselves, which Rhodes had abandoned. Mr. Nunn had interviews with the representatives of the appellee and exchanged letters and telegrams in relation to the proposed purchase by appellants, which finally culminated in Nunn’s written offer, contained in his letter to appellee dated February 5, 1897. Appellee’s telegram and letter of the 8th of February, accepting the offer, closed the deal. The rule is too well recognized to require citation of authorities that all preliminary negotiations, whether oral or written, are merged in the written contract. The offer by appellants to buy the pipe, which appears in Nunn’s letter of February 5, and the stipulation of terms therein upon which the purchase would be made, considered together with appellee’s letter and telegram of the eighth accepting appellants’ offer, constitute a contract in writing which is clear and unambiguous, both as to its object and extent. Considering these documents alone, without any reference to previous negotiations, they leave nothing to be explained,—they contain all the elements' of a complete written contract. If appellants had desired any further conditions, it was their duty to have so stipulated. The fact that in their written proposal to purchase they require no warranty of the pipe, precluded them from insisting upon it on the trial.
It is further urged, that conceding that the letters and telegram of February 5 and 8 constitute the entire contract between the parties, yet there is an implied warranty that the pipe was fit and suitable for the purpose for which it was intended to be used. The rule is, that if an article is to be made or supplied to the order of a purchaser there is an implied warranty of the fitness of the article for the special purpose designed by the buyer, • if that purpose be known to the vendor; but in the bargain and sale of an existing chattel there is not, in the absence of fraud, an implied' warranty of good quality or condition of the thing sold. (Benjamin on Sales, sec. 647; Mechem on Sales, secs. 1312-1316; Kohl v. Lindley, 39 Ill. 195; Misner v. Granger, 4 Gilm. 69; Carondelet Iron Works v. Moore, 78 Ill. 65.) In the case at bar the chattels in controversy were in existence, on the cars near appellants’ works, where appellants passed them frequently during the several months they lay there. That the appellants knew and recognized that they could determine, by inspection, whether or not the pipe would suit them, is evidenced by the fact that in the preliminary negotiations for the purchase Mr. Nunn stated that if the pipe should suit their. purpose' they would take it and pay for it. Where the purchaser of personal property sees the property before taking possession and has every opportunity to inspect the same, and no concealment is used on the part of the seller or representations made by him respecting the quality to induce the purchaser not to examine the same, the purchaser cannot recover on the ground of fraud and deceit. (Carondelet Iron Works v. Moore, supra.) In the case at bar we do not think the evidence as to representations by appellee of the quality of the pipe, even if admitted, would make such a case of deceit or false statements, knowingly made, as would warrant a finding in favor of appellants, where it is shown that they had as good opportunity of testing and inspection as-had appellee. There is no evidence whatever tending to prove that statements were made to appellants for the purpose of inducing them to waive the inspection which they first insisted on. The Crane Company simply wrote that it would not consent to make the sale dependent upon inspection by appellants’ engineer. Here was an existing chattel, which, in the absence of an express warranty, appellants must be held to have purchased upon their own inspection, or, if they failed to do so, at their own risk.
The judgment of the Appellate Court is right and will be affirmed.
Judgment affirmed.
