The contract seems to us to be complete in itself, as it contains all of the terms of an executory contract for specific machines, and became binding upon both parties when accepted by the plaintiff. In
Routledge v.
Worthington Co., 119 N. Y., 592 ; 30 St. Rep., 195 , it was said that whether the writing was regarded as an order merely or as an agreement was immaterial in determining this question. And the case of
Seitz v.
Brewers' Refrigerating Machine Co., U. S. Supreme Ct., Nov., 1891 (reported in N. Y. Law Jour, of Dec. 14, 1891), we think is conclusive of the controversy in this case. It seems to be nearly on all fours with the one under consideration. In that case the defendant, a purchaser of a machine described in the contract as a No. 2 Size Refrigerating Machine, set up false paroi representations as a ground for rescission and also a counterclaim for damages for breach of a paroi warranty made prior to or at the time of the sala In delivering the opinion, Fuller, 0. J., said, “ Undoubtedly the existence of a separate oral agreement as to any matter on which the written contract is silent, and which is not inconsistent with its terms, may be proven by paroi if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it, and when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole ‘ engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. Green! Ev., § 275. * The written contract was in all respects unambiguous and definite. The machine which the company sold and which Seitz bought was a ‘ No. 2 Size Refrigerating Machine ’ as constructed by the company, and such was the machina which was delivered, put up and operated in the brewery. A warranty or guaranty that the machine should reduce the temperature of the brewery to forty degrees Fahrenheit, while in itself collateral to the sale, which would be complete without it, would be part of the description and essential to the identity of the thing sold; and to admit of proof of such an engagement by paroi would be to add another term to the written contract, contrary to the settled salutary rule upon that subject”
But there is another reason why this judgment must be reversed. It was rendered, as we judge from the return, principally because there was a breach of warranty or guaranty. No such breach was pleaded, nor was there any attempt made to amend the pleadings as was done and allowed in the case last cited. But even on the evidence of the representations made before or at the time of the sale to Seitz, the court held that such-representations did not warrant the defendant in rescinding the contract. Seitz v. Brewers, etc., Co., supra, differs from Routledge v.