Daggett & Graves v. Johnson

Extrinsic Evidence to Vary Written Contract. Sale upon Approval. A written contract having no latent ambiguity, can neither be qualified nor controlled, enlarged nor diminished, by evidence of a contemporaneous parol understanding. Thus,-where defendant addressed plaintiffs by writing signed by him and plaintiffs’ agent, requesting them to send him a set of patent milk-pans, and'saying, “ I agree to pay you * * * if satisfied with the pans,” it was held that evidence of an agreement between defendant and, said agent as to the manner in which the pans should be tested, entered into at the time the written contract was drawn, and as part of the same agreement, was inadmissible. If one orders goods, agreeing to pay if satisfied therewith, he must, in ascertaining whether he is satisfied or not, act honestly, and in accordance with the reasonable expectations of the seller as implied from the contract — its subject-matter and surrounding circumstances. His dissatisfaction must be real and not pretended, to be available as a defence to an action-for the contract price.

General Assumpsit for the price of a quantity of milk-pans, appealed from the judgment of a justice of the peace, and tried by the court, at the December Term, 1876, Pierpoint, O. J., presiding. The plaintiffs introduced in evidence, and sought to recover upon, a written contract of the following tenor: Shrewsbury, Vt., April 10,1875. Messrs. Daggett & Graves: You will please send me on the 20th day of April, one set of Jewett’s Patent Milk-Pans, for 15 cows (capacity 30 U. S. gallons), for which I agree to pay you as follows: $80, if satisfied with the pans. 1 will pay you the first of July, with 5 per cent. oft. The above sum includes all the fixtures, the tables and water tank, delivered on the cars at Vergennes, Yt. ft. W. Johnson Mrs. J. P. Gibson, Agent- It appeared that the contract was negotiated by Mrs. Gibson, who was the plaintiffs’ agent; that the pans were delivered by plaintiffs, and duly received by the defendant, who used them like ordinary pans, until the first week in June, and then notified plaintiffs to take them away, and refused to pay for them. Plaintiffs offered parol testimony tending to show the form, construction, and superior size of the pans, and the manner of their use, and particularly, that they were so made as to be used with running water about them, to graduate the temperature of the milk ; that in the appliances for that purpose, consisted their excellence, and that at the time the contract was made, all those things were explainéd to defendant; that it was then agreed that defendant might use the pans without water until it could be brought into his milk-room, considering such use as no test, but that he should use them thirty or sixty days with water, after which, if he should be dissatisfied, plaintiffs would remove them at their own expense. Defendant claimed that parol testimony should not be admitted to enlarge or vary the written contract, or to show the test that should have been made, and that upon that contract he had a right to return the pans if not satisfied with them upon any trial he was ■pleased to make, or upon the trial that he did make. But the court ruled that defendant had no right, it being conceded that there was no objection to the construction of the pans, to say, arbitrarily and without cause, that he was dissatisfied, and would not keep and pay for the pans ; that the contract contemplated a test of the pans in the manner indicated by the understanding of the parties and the construction of the articles themselves ; and that “ parol testimony was admissible to show the form of the articles, the manner of their use, and the understanding of the parties in respect thereto at the time the contract was made.” To that ruling defendant excepted. Defendant’s evidence tended to show that it was agreed that if he was dissatisfied with the pans at any time, plaintiffs’ agent should take them away, whether they had been used with water or not. The court found from all the evidence that the contract as to the trial to be made of the pans was as plaintiffs’ evidence tended to show: that if the pans had been set as contemplated, they would have answered the recommendation made of them, and the expectation of the parties ; and that plaintiffs were entitled to recover the contract price thereof, and rendered judgment accordingly ; to which defendant excepted. cited Groot v. Story, 44 Vt. 200 ; Provost v. Harwood, 29 Vt. 219; Whitcomb v. Gilman, 35 Vt. 297 ; Manufacturing Go. v. Brush, 43 Vt. 528.