Majority
Headnote
Warranty—Breach of—Written proposal—Paroi evidence.Andrews, J.
The guaranty for the breach of which the defendant sought to counterclaim damages is contained in the written proposition made by the plaintiff to the defendant October 30, 1888, and orally accepted by the defendant, for the sale to the defendant of two “ wet machines,” to be used in the manufacture of wood pulp, after the process of grinding the pulp had been done by other machines constructed for that purpose.
The clause of guaranty is as follows: “We will guarantee the above machines to take care of all the pulp produced from four * Scott grinders,’ and deliver the pulp fifty per cent, dry.” When the proposition was made the defendant was engaged in erecting a pulp mill on its premises, and had contracted with the manu facturer of the Scott grinders for four grinders to be placed in the mill. They were subsequently placed in the mill, as were also the machines purchased from the plaintiff.
The defendant, in support of its contention, gave evidence tending to show that the machines bought of the plaintiff would not take care of. all the pulp produced by the four grinders placed in the mill, and deliver it fifty per cent dry. The four grinders would produce about eight tons of pulp a day, and the machines purchased of the plaintiff, while they would provide for that quantity, would not deliver it fifty per cent, dry, but forty to forty-five per cent dry. It was established on the part of the plaintiff that the machines would take care of at least six tons of pulp per day, and deliver it fifty per cent, dry, being an amount equal to 3,000 pounds of pulp for each grinder.
The plaintiff, in answer to the alleged counterclaim, was permitted to show that the guaranty was given upon the representation of the defendant that the Scott grinders, for which they had contracted, had a capacity of producing each 3,000 pounds of pulp per day, and that the proposition and guaranty were based upon this production. The point insisted upon in behalf of the defendant is, that this evidence was inadmissible, because in violation of
Oil June 27,1888, the defendant addressed a letter to the plaintiff, saying: “We have already made a trade for four grinders, that are guaranteed each to make 3,000 pounds every twenty-four hours, dry weight, and now we want to get a press to take care of it.” In another letter of October 16, 1888, the defendant. said: “ The machines we are putting in are guaranteed each to make 3,000 pounds, dry weight, pulp each twenty-four hours, or the four machines will turn out six tons a day. Ñow, will one of your 72 in. machines take care of this amount of pulp?” The con- ' versation between the parties concurrently with the date of the proposition (October 16, 1888), shows that the guaranty was made upon the basis that the capacity of the Scott grinders to be placed in the mill wás 3,000 pounds of pulp per day.
The inequity of the alleged counterclaim is apparent. But this is no answer to the rule of law invoked, if by its proper application it excludes a consideration of the facts referred to.
We think it may well be doubted whether the letters of June 27, 1888, and October 16, 1888, may not be considered as parts of the written contract for the sale of the machines. The proposition of guaranty of October 30, 1888, was its culmination, but the previous letters of the defendant explain the application of the guaranty, and being themselves in writing their consideration does not contravene the principle upon which oral terms are forbidden to be engrafted upon written contracts. But passing this we are of opinion that the oral evidence was competent to ascertain and define the capacity of the grinders to which the guaranty related. The parties were contracting for machines which would take care of the pulp produced by “ four Scott grinders,” and deliver it at a certain dryness. The amount of pulp produced depends, as the evidence shows, upon the capacity of the grinders and the power applied. Scott grinders are manufactured of varying capacity. The plaintiff had no knowledge of the capacity of the grinders which were to be placed in the mill except as informed by the defendant. It would be unreasonable to suppose that in making the contract with the plaintiff, the parties contracted without reference to the capacity of the grinders to be used, or that by the words, “ all the pulp produced by four Scott grinders,” the parties intended all the pulp which could be produced by any .Scott grinders operated with any power, however great. ' The extrinsic circumstances show that they had reference to the production of the four grinders contracted for, having the capacity represented by the defendant.
In interpreting the guaranty paroi evidence identifying the machines known as Scott grinders is essential. The fact that the grinders are of different . productive capacity involves the further inquiry, to grinders of what capacity did the parties refer ? This we think was the subject of explanation by paroi
The conclusion we, have reached renders it unnecessary to consider any of the other questions in the case. The facts as to the contemporaneous oral understanding of the parties and the other extrinsic facts are undisputed, and the plaintiff was entitled to judgment thereon.
The judgment below is, therefore, affirmed, with costs.
All concur.