# De Witt v. Berry/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
United States Supreme Court
134 U.S. 306
De Witt v. Berry
It is not necessary to examine the 16 assignments of error in detail. When analyzed, they are resolved into one or other of these three propositions: (1) That under a contract for the future delivery of goods, such as was made in this case, and by the terms of this agreement, it was still necessary that the goods delivered should conform to a common commercial standard, and shoud be adapted to the known uses of the vendee, notwithstanding the express terms of the written contract; (2) that the court erred in refusing to treat the previous contract between Berry Bros. and the De Witt Wire Cloth Company as a part of the contract in controversy, by reference; (3) that the court erred in excluding the antecedent parol colloquium offered as a part of the contract, or as competent to explain and interpret it.
We will consider these general propositions in the order stated.
First. The contract between the parties was in writing, and contained an express warranty as to the quality. It says: 'These goods [are] to be exactly the same quality as we make for the De Witt Wire Cloth Company, of New York, and as per sample bbls. delivered.' Now, there is good authority for the proposition that if the contract of sale is in writing, and contains no warranty, parol evidence is not admissible to add a warranty. Van Ostrand v. Reed, 1 Wend. 424; Lamb v. Crafts, 12 Metc. 353, Dean v. Mason, 4 Conn. 432; Reed v. Wood, 9 Vt. 285; 1 Pars. Cont. (6th Ed.) 589. If it be true that the failure of a vendee to exact a warranty when he takes a written contract precludes him from showing a warranty be parol, a multo fortiori when his written contract contains a warranty on the identical question, and one in its terms inconsistent with the one claimed. In the case of The Reeside, 2 Sum. 567, Mr. Justice STORY said: 'I apprehend that it never can be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori not in order to contradict them. An express contract of the parties is always admissible to supersede or vary or control a usage or custom, for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties.' The principle is that, while parol evidence is sometimes admissible to explain such terms in the contract as are doubtful, it is not admissible to contradict what is plain, or to add new terms. Thus, where a certain written contract was for 'prime singed bacon,' evidence offered to prove that by the usage of the trade a certain latitude of deterioration, called 'average taint,' was allowed to subsist before the bacon ceased to answer that description, was held to be inadmissible. 1 Greenl. Ev. § 292, note 3; Yates v. Pym, 6 Taunt. 446; Barnard v. Kellogg, 10 Wall. 383; Bliven v. Screw Co., 23 How. 420, Oelricks v Ford, Id. 49. There are unmerous well-considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable, or fit for their intended use. Pavement Co. v Smith, 17 Mo. App. 264; Johnson v. Latimer, 71 Ga. 470; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. Rep. 359; Shepherd v. Gilroy, 46 Iowa, 193; McGraw v. Fletcher, 35 Mich. 104. Nor is there any conflict between these authorities and others like them on the one hand, and those on the other, which hold that goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable, or as suited to the known purpose of the buyer. Dushane v. Benedict, 120 U.S. 630, 636, 7 Sup. Ct. Rep 696, and cases there cited. It is the existence of the express warranty, or its absence, which determines the question. In the case at bar there was such an express warranty of quality in terms. Not only that, but there was a sample delivered and accepted as such. The law is well settled that, under such circumstances, implied warranties do not exist. Mumford v. McPherson, 1 Johns. 414; Sands v. Taylor, 5 Johns 395; Beck v Sheldon, 48 N. Y. 365; Parkinson v. Lee, 2 East, 314. In Jones v. Just, L. R. 3 Q. B. 197, quoted by Mr. Benjamin in his work on Sales, § 657, MELLOR, J., delivering the opinion of the court, laid down, among others, the following rule: 'Where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.' Chanter v. Hopkins, 4 Mees. & W. 399; Ollivant v. Bayley, 5 Q. B. 288.
Examining, now, the express terms of the contract, in order to see what they are, and whether they fairly import the warranty claimed by the plaintiffs in error, we find them to be as follows: 'These goods to be exactly the same quality as we make for the De Witt Wire Cloth Company, of New York, and as persample bbls. delivered. Turpentine copal varnish, at 65 cts. per gallon. Turpentine japan dryer, at 55 cts. per gallon.' There are here three items of description claimed by the plaintiffs in error: (1) That they should be the same as those made for the De Witt Wire Cloth Company; and there is no evidence whatever that they were not the same, nor is a difference in this respect any part of their claim. (2) That they should conform to a sample delivered; and here again is an entire absence of testimony to show any difference, and a want of any such claim by the plaintiffs in error. The whole question, therefore, as to this branch of the case turns upon the effect of the use of the expressions: 'Turpentine copal varnish, at 65 cts. per gallon. Turpentine japan dryer, at 55 cts. per gallon.' The plaintiffs in error maintain that the defendants in error thereby engaged to deliver articles known to the trade by those names, and of a certain standard of quality. We do not so construe the writing. All the terms descriptive of the quality are found in the sentence preceding. These sentences are nothing but stipulations in respect to the prices to be paid, and were not intended to fix quality.
There is this furthere to be said: We have carefully examined the record in this case, and are impressed with a conviction that, whatever the fact may be, the evidence adduced fails to show any such general usage of trade in respect to the standard of these preparations, or in respect to their designations, as is claimed by the plaintiffs in error. Their position is that the words 'turpentine copal varnish,' etc., if considered at all as a stipulation as to quality, would mean a varnish in which the liquid elements were to be so composed that at least 50 per cent. of them should be turpentine. In Carter v. Crick, 4 Hurl. & N. 417, POLLOCK, C. B., observed that 'if a party seeks to make out that certain words used in a contract have a different acceptation from their ordinary sense, either for the purposes of trade, or within a certain market, or a particular county, he must prove it, not by calling witnesses, some of which say it is one way and some the other, and then leaving it to the jury to say which they believe, but by clear, distinct, and irresistible evidence.'
We pass now to the second proposition of the plaintiffs in error, that the court erred in refusing to charge the jury that if the goods delivered to them as turpentine were not the best of their kind, as guarantied by reference to the contract with the De Witt Wire Cloth Company, they should find for them. The answer to the proposition seems obvious. It is but an effort, in a different shape, to vary the written contract made. The terms of that contract were not, 'these goods to be exactly the same quality as we have heretofore contracted to make for the De Witt Wire Cloth Company, and as per sample bbls. delivered,' but were, 'these goods to be exactly the same quality as we make for the De Witt Wire Cloth Company,' etc. There is here no reference whatever, either express or implied, to h e contract with the De Witt Wire Cloth Company. What goods were in fact made, not what were agreed to be made, was the standard. To fix that standard of goods produced, and not goods contracted for, yet more firmly as the measure of quality, a subsequent clause was written, 'and as per sample bbls. delivered.' It is clear that, under the contract, if the goods produced for the De Witt Wire Cloth Company varied from the samples delivered, the plaintiffs in error has the right to insist on the test by the sample. It is manifest that the terms of the other contract were not present to the minds of the parties to this contract. The plaintiffs in error fixed the terms of their warranty, and we cannot import other terms into the writing.
The third proposition, that the court erred in excluding evidence of an antecedent conversation between the salesman and one of the plaintiffs in error, is disposed of by the well-settled rule that, 'when parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloqium between the parties, * * * as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the paries, is rejected.' 1 Greenl. Ev. § 275, and authorities cited; White v. Bank, 102 U.S. 658; Metcalf v. Williams, 104 U.S. 93; Martin v. Cole, Id. 30.
On the whole case we find no material error, and the judgment of the court below is affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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