#### The Burroughs Adding Machine Company, Appellant, *v.*Clinton Van Deusen, Respondent.

(Supreme Court, Appellate Term, Second Department,

December, 1912.)

Contracts — warranty of fitness — machine left on trial — sales.

The presumption that one made a contract to which his signature is attached may he rebutted.

Where, on the trial of an action to recover the purchase price of an adding and listing machine alleged to have been sold under a written contract to defendant, he testifies that, on his refusal to purchase the machine without an opportunity of testing it, plaintiff’s agent said to him, “ You sign an order showing the company that this machine is going into your hands and if it is all I claim for it and meets your requirements you keep it;” that he demurred and asked why the agent did not do that and he replied that it would look as if he were trying to get a sample machine for his own use and then said “ If you sign the order then it will show that the machine 'is going into your hands and if it does everything we claim for it and it meets your requirements you keep it,” and upon defendant’s agreeing thereto the agent laid a paper on his desk and said “ Sign that and we will have to hurry to get to the hall game if we want to see that first inning,” and defendant signed the paper without reading or knowing its contents, he is entitled to show that the real arrangement with plaintiff’s agent was that the machine was left on trial and that there was an express warranty of fitness.

An exception to a charge to the jury that there was an implied warranty that the machine would be fit and competent to do its work, on the ground that any implied warranty was excluded by the written contract, was bad because it assumed as matter of law that the written contract governed the rights of the parties.

Appeal from judgment in favor of defendant after trial by jury.

Philip H. Leifert (Charles Troslc, of counsel), for appellant.

Hirsih & Tiewman (Benjamin Reass, of counsel), for respondent.

*644Blackmar, J.

This was an action to recover. $47 5, the price of a Burroughs adding and listing machine.

The defense was that the property was not sold hut was left with the defendant on trial, that there was a breach of an express covehant of warranty and a breach of an implied covenant of warranty. The case turns upon the effect to be given to a document introduced in evidence by the plaintiff as the written contract of sale of the machine. This so-called contract contains the statement that it covers all agreements, express and implied, between the undersigned purchaser and the Burroughs Adding Machine Company. The appellant’s contention rests entirely upon the failure of the court and jury to give effect to this instrument as the contract between the parties.

The defendant testified that after he had refused to purchase the machine without an opportunity of testing it, the agent of the plaintiff said to him, “ You sign an order showing the company that this machine -is going into your hands, and if it is all I claim for it and meets your requirements you keep it;” that he demurred and asked why the agent didn’t do that and he replied that it would look as if he were trying to get a sample machine for his own use and then said “ If you sign the order then it will show that the machine is going into your hands and if it does everything we claim for it and it meets your requirements you keep it.” The defendant agreed to this, and the agent then called him to his desk and laid a paper on it and said “ Sign that and we will have to hurry to get to the ball game if we want to see that first inning,” so he signed it without reading it or knowing what was in it.

It was competent on this evidence to find that the defendant did not make a contract to purchase the machine. The situation is not the same as where one, admitting that he signed the contract, asks to have it rescinded for fraud. The real question in this case is whether the defendant ever made the contract. His signature is *prima facie*evidence that he did, hut that evidence may be rebutted. The evidence given on the trial was not to vary the terms of a written contract, but it was offered upon the question whether the contract had *645been actually made. If the defendant signed the paper without intent to sign a contract of purchase, it is not a contract. Wilcox v. American Telegraph & Telephone Co., 716 N. Y. 115; Cleary v. Municipal Electric Light Co., 19 N. Y. Supp. 951; affd., on opinion below, 139 N. Y. 643. There might be some question as to whether this issue was expressly submitted to the jury; but, in the absence of a request to submit or of ah exception to the method of submission, this cannot avail the appellant.

There was, therefore, enough in the case to justify the jury in finding that there was no contract of sale; and, if so, it was competent for the defendant to show what the real arrangement with the agent of the plaintiff was, *i.*e., that the machine was left on trial. It was also competent to show that there was an express warranty of the character of the machine.

The only exception which I find to the charge to the jury is the exception to the judge’s statement that there was an implied warranty that the machine would be fit and competent to do the work. The justice was undoubtedly right in his general statement of the law. Hoe v. Sanborn, 21 N. Y. 552. The appellant places his exception on the ground that there was a written contract excluding any implied warranty but, as we have seen, the question whether the rights of the parties were governed by this written contract or not was one of fact to be decided upon the evidence. The exception is bad because it assumed that the written contract governed the relations of the parties as matter of law.

It has been suggested that, as the defendant received this so-called contract before the machine was delivered and noticed the clause covering all agreements, express and implied, and thereafter accepted the machine, he thereupon ratified such contract. Whether he ratified the contract or not was a question of fact. Upon this question the evidence that the agent told him that such provision did not apply to his case was relevant. The appellant did not request that this issue be submitted to the jury and cannot urge such a point here as a ground for reversal.

The circumstances show it to be improbable that the de*646fendant, who was then testing adding machines of other makes, should have agreed to buy this machine without a preliminary test; and, on the whole case, I am of the opinion that justice has been done and that the judgment should be affirmed with costs.

Maddox and Putnam, JJ., concur.

Judgment affirmed with costs.