John D. Gruber Co. v. Smith , 195 Mich. 336 ( 1917 )

Brooke, J.

(after stating the facts). The first two assignments of error argued in appellant’s brief relate to the admission of certain testimony. While we are of opinion that the testimony of which complaint was made was immaterial to the issue, its admission can scarcely be regarded as prejudicial error.

The third assignment of error relates to the following matter: On April 4, 1913, plaintiff’s president

had written defendant a letter which contained the following:

“Our experience with gas tractors is that less than 10 per cent, of the people who buy gas tractors of any make whatsoever are successful. This is our experience and we have tried them all.”

Referring to this letter, defendant Dale A. Smith was permitted, over objection, to testify that if he had known that that had been the experience of the plaintiff, he would not have bought the engine. We are of opinion that the admission of this testimony was erroneous, for the reason that the letter containing the statement was dated more than two years after the contract covering the machinery was made, and there is no evidence in the record tending to show that at the time the contract was made plaintiff’s president had any such information or experience.

The fourth assignment of error is based upon the fact that defendant was permitted to testify, over objection, that plaintiff through its agents had represented prior to the sale that the outfit would plow 640 acres that spring. This testimony was inadmissible. The statement, if made, amounted merely to conjecture. Allis v. McLean, 48 Mich. 428 (12 N. W. 640); Truman v. Machine Co., 169 Mich. 153 (135 N. W. 89). In the course of the charge the following language appears:

“It appears from the testimony in the case that the defendants never entered into any contract with the International Harvester Company or any other manufacturing concern in relation to this machinery or outfit; that the order as originally given was to John D. Gruber Company, and accepted by said John D. Gruber Company, the plaintiff, and the only right of action or defense by way of no consideration for the notes or recoupment of damages is against the said John D. Gruber Company, and the defendants are not obliged in any way to look to any other concern, corporation, or person. If John D. Gruber Company acted in good faith and sold this machinery, including this tractor engine, to the defendants relying upon the manufacturer’s guaranty or warranty, and that has not been fulfilled, then and in that case they might have an action against the manufacturer, but the defendants must look directly and only to John D. Gruber Company.”

This instruction would seem to be clearly erroneous. The action at bar is between the John D. Gruber Company and the defendants Smith. The rights of either of the parties over against third persons not parties to the action are wholly immaterial. Upon this instruction the jury might very well conclude that a verdict in favor of the defendants would work no injury to plaintiff who might recover therefor against the manufacturer, the International Harvester Company. The court further charged:

“Also take into consideration this voluminous correspondence it has taken some days to read in your presence, not for the purpose of taking the representations that were made in these letters to vitiate and set aside this contract, but for the purpose of throwing light upon what the real' contract and arrangements were, what the representations really were made by the plaintiff and bearing upon the probability or improbability of whether the defendants believed and relied upon what the plaintiff said in that connection. How did the plaintiff treat this subject by virtue of this correspondence, does that throw light upon what the original arrangement was and what the representations were. How does the defendant in that correspondence treat the question. As though he understood what this machinery was, its quality, its condition, and its character and its efficiency and what it would do? Or did he rely entirely and rest entirely upon the strength of the statements made by the plaintiff’s agent Gruber, when he made this contract? And so you are to consider the testimony orally given by these parties and the several witnesses upon this question they gave in the depositions for the purpose of ascertaining what light you can receive upon the original arrangement. What was it? It is not to be set aside because of any representations made in the letters; they are only to be received as bearing upon what the original arrangement was; whether fraud, deceit, and deception was practiced by the plaintiff at that time, or whether there was later, under the consideration of the matters or arrangements, whether it was sold with a certain guaranty the law implies, and whether there has been damage suffered by defendants without fault on their part.”

We think error is properly assigned upon this por-, tion of the charge. The contract in question in the case was very voluminous, was in writing, and expressly states that it contains all the terms of the agreement. Under these circumstances it was clearly improper to permit the jury to consider the correspondence or the testimony as an aid in determining what the original contract was, when the parties thereto had reduced that contract to writing. Day Leather Co. v. Leather Co., 141 Mich. 533 (104 N. W. 797); Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286).

With reference to warranty the court charged as follows:

“If you find that the defendants fully and fairly stated to the plaintiff, through its agents and representatives, the purpose and object of the purchase and the use that they expected to make of this machinery, and that the plaintiff through its agents and representatives fully understood the purpose, object, and intention and expectations of the defendants, and thereupon recommended and sold to the defendants the outfit in question, an implied warranty by law was created which was to the effect — that is, the law says that the machinery would do and perform the work, and it should be adequate and efficient for the purpose for which it was purchased. * * * But it makes no difference in this case whether the defendant saw this manufacturer’s guaranty or warranty or not, because there is an implied warranty that this, as well as all machinery or other property, where the seller knows the purchaser is buying the property for a special purpose and use, that the machinery and property will meet the requirements and. is suitable and efficient for that purpose, and of a kind, character, and condition qualified for such use.”

In so instructing the jury, the court was clearly in error. We have many times held that where there is a written contract containing an express warranty, no other or different warranty can be implied: Hall v. Car Co., 168 Mich. 634, 640 (135 N. W. 118); Remy, Schmidt & Pleissner v. Healey, 161 Mich. 266 (126 N. W. 202, 29 L. R. A. [N. S.] 139, 21 Am. & Eng. Ann. Cas. 74); Hallwood Cash Register Co. v. Millard, 127 Mich. 316 (86 N. W. 833); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); D. M. Osborne & Co. v. Wigent, 127 Mich. 624 (86 N. W. 1022); National Cash Register Co. v. Blumenthal, 85 Mich. 464 (48 N. W. 622); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (43 N. W. 875, 6 L. R. A. 412).

The jury found in favor of the defendants, because according to their answer to the second special question the contract was induced by fraudulent representations made by plaintiff’s agent. These representations, according to the testimony, and briefly stated, consisted in the following:

(1) That the engine had sufficient power to haul six gang plows with breaker bottoms, a packer, and a drill.

(2) That it had ample power to haul the same at the rate of 2 to 2miles an hour.

(3) That it would plow at least an acre an hour.

(4) That the said defendants could pay for the said machinery and outfit out of the earnings of the same.

(5) That any man of ordinary intelligence, after a few hours of instruction, could operate the same.

(6) That the engine and machinery were first-class and the best that was made, and would be sufficient to meet all the requirements and demands of said defendants in their operation of plowing, as stated by the plaintiff.

(7) That it would plow an acre per hour at a cost not to exceed a dollar an acre (Amended plea, Rec. p. 11).

It is a fact worthy of note that in the very voluminous correspondence carried on during a period of two years between the defendants and the plaintiff, defendants at no time charged plaintiff’s agent who effected the sale with any misrepresentation in connection therewith.

With reference to Nos. 1, 2, 3, and 7 the representations, even if made orally, before the execution of the contract, would clearly fall within our holding in the case of Detroit Shipbuilding Co. v. Comstock, supra, and Linderman Machine Co. v. Shaw-Walker Co., 187 Mich. 28 (153 N. W. 34).

Nos. 4 and 5 fall within that class of representations commonly known as “puffing,” and No. 6 is covered by the written warranty in the contract itself.

It is the claim of defendants that the contract was rescinded in October, 1912, after two full seasons of operation. Aside from the fact that the contract itself provides for the time in which defendants may rescind after trial, it is clear that such delay as was indulged in by the defendants in this case is wholly beyond reason. Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690); Emert v. Nibblink, 179 Mich. 335 (146 N. W. 120).

In addition to this, after the alleged rescission, defendants continued to use the outfit, plowing 75 or 80 acres with it in the spring of 1913 and doing further work with it during 1914. Under our own authorities, rescission under such circumstances is impossible. Kupfer v. Clothing Co., 141 Mich. 325 (104 N. W. 582); Hakes v. Thayer, 165 Mich. 476 (131 N. W. 174); Linderman Machine Co. v. Shaw-Walker Co., supra.

Under the proof as it appeared at the close of the testimony in this case, we are of opinion that the plaintiff’s first request to charge, which was for a directed verdict in its favor, should have been given.

The judgment is reversed, with costs, and a new trial ordered.

Kuhn, C. J., and Stone, Ostrander, Moore, and Steere, JJ., concurred. Bird and Person, JJ., did not sit.