240 A.D. 120 | N.Y. App. Div. | 1934
Lead Opinion
The plaintiff, a manufacturer of hatters’ furs, for many years has been a purchaser of hareskins from which are
The controversy which has resulted in this litigation arises out of three contracts for the sale to the plaintiff of raw China hareskins, each of which forms the basis of a separate cause of action contained in the complaint for alleged breach of warranty. In connection with these sales three written contracts were executed by the parties, dated December 13, 1928, January 11, 1929, and January 14, 1929. These contracts are identical in form. The first contract in point of time will, therefore, serve as illustrative of all. It provides:
“ Sale Note
“ General Import Dept.
“ No. IF 165
“ Bingham & Co., Inc.,
“ 104 Pearl St.
“ New York
“ Telephones
“ Bowling Green 5930-37
, in inno December 13, 1928
“ Sold to W. H. Waters, Inc., 225 Greene Street, New York City.
“ For Account of Messrs. Carlowitz & Co., Tientsin, China, Bingham & Co. Inc. Agents.
“ Quantity, About 100,000 ■— One Hundred Thousand
“ Description, Raw China Hareskins, 80% No. 1 — 20% No. 2 Winter hair Type A
“ Position, To be shipped at China to New York direct and/or indirect January and/or February and/or March 1929.
“ Price, At Nine and three-quarter cents (9fc) each, ex dock New York.
“ Terms, Net cash on the 16th day of the month following the arrival of the goods in New York.
“ Conditions, Sale subject to present tariff, any change for account of buyers. Any additional U. S. duty and/or tax effective before the completion of this contract is for buyer’s account; sellers will not be held responsible for inability to ship due to strikes, fires, civil commotion, war, cyclone, or any contingencies beyond their control. Disputes regarding delivery or quality are to be settled by New York arbitration, but sellers reserve the option either to pay amount of claim allowed by arbitration, or refund the amount paid by buyer for the merchandise and to take the merchandise in return, thus cancelling this contract, and rescinding the sale.*122 Any claim or demand for arbitration to be made within fifteen days after the arrival of the merchandise, and while and unopened 10% of the shipment is available for sampling. Notice of shipments to be given as soon as received. No arrival, no sale.
“ BINGHAM & CO., INC.
“Agents.
“ (Signed) R. M. Skinner
“ Vice-Pres.
“ No Responsibility Assumed by Selling Brokers Except by Special Agreement.
“Accepted Dec. 14, 1928.
“ WILLIAM H. WATERS, INC.
“ President. Buyers.”
The contract of January 11, 1929, in similar form, is for the sale of 150,000 skins, which are described as “ Raw China Hareskins, 95% No. 1 ■— 5% No. 2 winter hair, Type A; ” that of January 14, 1929, is for 50,000 skins, described as “ Raw China Hareskins, 80% No. 1 •— 20% No. 2, winter hair.” On the face of each contract appears the following: “All correspondence should be addressed to the firm and not to individuals. Contracts not binding unless signed by the firm.”
The present action is for damages for breach of a warranty alleged to have been given by representatives of Bingham & Co. early in December, 1928, to the effect that the No. 1 quality skins would yield four pounds and the No. 2 quality skins two and two-thirds pounds of fur, for each one hundred skins; furthermore, that both No. 1 and No. 2 quality skins would be delivered flat, with the pelt uncracked and free from sand. These warranties are not contained in the contracts of sale, as the plaintiff appears to have realized, for in its bill of particulars it sets forth that the agreements were partly oral and partly written, the written portion corresponding to the written contracts of sale, and that, except as contained in the written contracts, the warranties were oral.
The plaintiff’s cause of action depended upon its ability to establish that the merchandise delivered was not in accordance with the contracts of sale. For that purpose the plaintiff was entitled to establish the meaning of “ No. 1 ” and “ No. 2 ” hareskins, of “ winter hair ” or “ Type A.” To do this, parol evidence was, of course, proper and necessary. (Emmett v. Penoyer, 151 N. Y. 564; Walls v. Bailey, 49 id. 464; Dana v. Fiedler, 12 id. 40; Gumbinsky Bros. Co. v. Smalley, 203 App. Div. 661; affd., 235 N. Y. 619; Newhall v. Appleton, 114 id. 140; American Aniline Products, Inc., v. Mitsui & Co., Ltd,., 190 App. Div. 485.) But beyond this the plaintiff should not have been permitted to go. If the hare-
The same contract prepared by you, you say that you need parol evidence to show what type A is. You need parol evidence to show what quality 1, quality 2, are. Then I say that they must have the same right to show what the contract was.”
We think that there was error in these rulings and also in the charge of the court submitting to the jury the issue of the existence of an express warranty of quality. The testimony to which we have referred had no relation to the meaning attributable to the written contracts nor to any question of implied warranty. Its effect was to extend the defendants’ obligations under the contract by requiring them to deliver not merely skins as therein described but skins which in addition would yield the specified quantity of fur. It was one thing to allow the symbols descriptive of the mer
We think the judgment cannot be affirmed without disregarding the established rule of law that a written contract merges all prior and contemporaneous negotiations and oral promises relating to the same subject and that when the terms of the agreement are reduced to writing by the parties the written contract is conclusively presumed to integrate their entire engagements. Here the written contracts appear in all respects to be complete, and, being so, must be presumed to have exhausted the intentions of the parties on the subject of these sales. They specify the seller and the buyer, the price, the terms of payment, the quantities to be sold, the dates of shipment and other usual conditions of sale. Among those conditions reference is made to “ this contract ” and across the face of the instrument appears the statement that “ Contracts ” are not binding unless executed by the firm. The plaintiff also recognized this to be so, for after executing the contracts of January 11 and January 14, 1929, it returned them in each instance with a letter in which reference is made to the inclosure as the “ signed contract.” Indeed, the most careful inspection of the written contracts would lead no one to suspect the existence of any stipulation relating to the sales which the parties had not included therein.
But, it is contended, the written contracts here are not complete, because it has been established to the satisfaction of the jury that
Nor can the parol warranty be sustained as collateral on the theory that the plaintiff executed the written contracts in consideration of the separate and independent agreement of the defendants that the sldns delivered would produce a specified quantity of fur. It is very true that a collateral undertaking may, within well-settled limitations, be established by parol. “ Contracts are frequently made that are collateral to, but independent of, a written contract and they can be properly established by oral testimony. Evidence of such contracts is sometimes referred to as an exception to said general rule. It is more accurate to say that collateral and independent contracts can be shown by oral testimony because it was not the intention of the parties thereto to include such contracts in the writing. Collateral contracts are thus frequently established by oral testimony, because they are collateral.” (Lese v. Lamprecht, supra, 36.) An illustration of a collateral agreement, often cited, is Jeffery v. Walton (1 Stark. 267), decided by Lord Ellenborotjgh in 1816. There the parties had executed a written memorandum setting forth a contract for the hiring by the defendant of the plaintiff’s horse. The horse having shied and been injured, the plaintiff was permitted to prove that it was verbally agreed that the defendant would compensate the plaintiff if, in consequence of
The parol warranty was inseparably connected with the subject-matter of the written contracts. The subject-matter of those contracts was the sale of haresldns.' The warranty was incidental' to the sale. It affected the identity of the merchandise contracted to be sold. It was an element or detail of the principal transaction which contracting parties “ would ordinarily embody in their written contract.” Indeed, it would be difficult to imagine a closer relation than exists between a contract for the sale of merchandise and a warranty of quality. Such a warranty, even if collateral, was so closely related to the sale that it perished when the other terms of the agreement were reduced to writing by the parties. (Eighmie v. Taylor, supra.) To allow it to be established by parol would result in the serious impairment of a rule which experience has shown to be useful and necessary. Chapin v. Dobson (78 N. Y. 74), principally relied on by the respondent, appears also to have been relied on by the trial court. Always regarded as “ near the border line ” (Thomas v. Scutt, supra, 138), it was recently said (Mitchill v. Lath, supra, 383) that it “ is rarely cited except to be distinguished.” It was also plainly intimated (p. 383) that many of the decisions (Morgan v. Griffith, L. R. [6 Exch.] 70; Erskine v. Adeane, L. R. [8 Ch. App.] 756, and Batterman v. Pierce, 3 Hill, 171), strongly relied upon in Chapin v. Dobson, are not in harmony with controlling decisions in this State. Even when approved, it has been only as an illustration of “ the familiar rule that if the writing does not contain on its face the entire agreement between the parties, parol, not inconsistent with its terms, may be received, not to contradict it but to show the real contract.
It need only be added that many decisions.in other jurisdictions accord with the conclusions which we have expressed. Such is the rule in the United States courts (DeWitt v. Berry, 134 U. S. 306; Seitz v. Brewers’ Refrigerating Co., 141 id. 510), in England (Pickering v. Dowson, 4 Taunt. 779; Chanter v. Hopkins, 4 M. & W. 399), and in other jurisdictions (Glackin v. Bennett, 226 Mass. 316; Telluride Power Co. v. Crane Co., 208 Ill. 218; Storage Co. v. Woods, 99 Mich. 269; Naumberg v. Young, 44 N. J. L. 331; Michigan Pipe Co. v. Sullivan County Water Co., 190 Ind. 14; Miller v. E. L. & P. Co., 133 Mo. 205; Thompson v. Libby, 34 Minn. 374; Case Plow Works v. Niles & Scott Co., 90 Wis. 590; Bullard v. Brewer, 118 Ga. 918; Quinn v. Moss, 45 Neb. 614; Battery Co. v. Railway Co., 138 Iowa, 369; Griffin v. Runnion, 74 W. Va. 641; Ehrsam v. Brown, 64 Kan. 466; Wilcox v. Cate & Bunker, 65 Vt. 478).
The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.
Finch, P. J., Townley and Glennon, JJ., concur; Merrell, J., dissents and votes for affirmance.
Dissenting Opinion
(dissenting). This action was brought to reeover damages for an alleged breach of warranty on three separate sales of China hareskins for which the plaintiff contracted with the defendants, a firm doing business in China. The contracts in suit were negotiated by the firm of Bingham & Co., acting as the representative of the defendants in this country. These hareskins involved in the three contracts were purchased by the plaintiff for the purpose of obtaining the fur therefrom in the manufacture of hats, in which the plaintiff was engaged. The contracts in question were three in number and were partly in writing and partly oral, the written contracts being substantially identical in their general terms, and were dated, respectively, December 13, 1928, January 11, 1929, and January 14, 1929. The only difference in these contracts was in relation to the quantities and assortments of the hareskins. The purchase price of all of the skins embraced in the three contracts was paid by plaintiff, and plaintiff brings this action to recover damages against the defendants by reason of the breach of warranty as to the quality of the skins purchased. When the skins arrived in this country they were found, upon inspection, to be defective and not up to the warranty under which
It is also the contention of appellants that the court erred in refusing the appellants the right to show what the habits of the defendants were with relation to sales to third parties. I think this had nothing whatever to do with what the contract was between the plaintiff and the defendants. And it is also claimed by the appellants that the court improperly refused the appellants the right to show the custom in the trade not to make warranties of the goods in question. Of course, this is absurd on the face, and there could be no custom which would nullify a contract between the parties.
It is also the contention of the appellants that the verdict was a compromise one, and, therefore, cannot be upheld. In answer to this, the damages sought to be recovered were unliquidated, and it was for the jury to say just what damages, under the evidence, the plaintiff had suffered.
The issues in the case were submitted to the jury in a very exhaustive and admirable charge. I see no prejudicial error in anything that the court said in charging the jury.
Even in the absence of an express warranty as to the goods embraced in the contracts and their quality and yield, 1 think, in view of the past dealing between the plaintiff and the defendants, when the plaintiff, for a number of years, purchased from samples, and during which an understanding had grown up between the parties as to what the yield would be in the type of goods embraced in the contracts, that an implied warranty on the part of the defendants existed that the goods would be up to the quality and yield of those formerly purchased by the plaintiff of the defendants by sample. I do not think the plaintiff is at all dependent upon the establishment of an express warranty, and that there was an implied warranty here as to the quality and yield of the hareskins.
The judgment appealed from should be affirmed, with costs to plaintiff, respondent, against defendants, appellants.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.