#### Driesbach *versus*Lewisburg Bridge Company.

1. After negotiations for the sale of a rope the purchaser wrote to the seller, “ The company will take your rope on the following conditions: the rope to be spliced in a proper manner and put on the reel, with fixtures in good order for use, you to send the rope and fixtures,” etc. The seller replied: “ . . . In order to give you a definite answer wanted to see the man about having the rope spliced. . . . The man will be here this morning and splice the rope to-day, and if possible will ship it to-morrow.” The rope was sent and paid for. *Held,*not to be a warranty of the rope.

2. During the negotiation, the seller said he would “ warrant the rope,” *178etc., and was informed that if he would warrant the rope he might send it, etc.; the letters were *afterwards*written. This was evidence of an express warranty.

3. The warranty having been broken, the purchaser could either return the rope and recover the purchase-money, or retain it and recover damages.

April 1st, 1874.

Before Agnew, C. J., Sharswood, Mercur, and Gordon, JJ., Williams, J., at Nisi Prius.

Error to the Court of Common Pleas of *Northumberland*County, of January Term, 1874, No. 15.

This was an action of assumpsit, brought November 4th, 1867, by the President, managers, and company, for erecting bridge, etc., at Lewisburg, against Daniel G. Driesbach.

The action was on a contract of warranty alleged to have been made by the defendant with the plaintiff in the sale .of a wire ferry rope by the defendant to the plaintiffs.

The case was tried October 27th, 1873, before Rockeeeller, P. J.

The plaintiffs gave evidence by Joseph Shriner that about April 1st, 1865, shortly after the plaintiffs had lost their bridge, he met defendant at Harrisburg, and said the com pany would pei’haps put. up a ferry ; defendant asked him to see the president and say that he had a splendid wire rope which he would sell cheaper than a new one, and “ would warrant it to be a great deal better than a new one.” The president, on being told this conversation, said to witness, that if defendant “ would warrant the rope to answer the pprpose, he should send it over and he would pay for it.” Witness told this to defendant, who then agreed to send the rope. Defendant when witness went to see • him said, “ he would warrant the rope to be a good rope ; he would guaranty it to be a good rope. I said if he would do that he should send the rope; he said he would guaranty the rope- to be a first-rate rope.” ■ He told witness to tell the president that “ he would, insure it to be a good rope, and would warrant it to be good and sound.” The rope was sent. Defendant said to another witness that it was a first-class rope; that it had been tested.

Another witness testified that defendant said in the president’s office that the rope was a No. 1 rope, better than a new one; if not as he guarantied it he would refund the mone}'; he would guaranty it to be one of the best ropes.

The following letters were given in evidence.

“ Lewisburs, April 21st, 1865.

“ Daniel Driesbach, Esq.

“ Sir : The directors of the Lewisburg Bridge Company directed me to say to you that they would take your wire *179rope on the following conditions : the rope to be spliced in a proper manner and put on the reel, with the fixtures in good order for use, you to send the rope and fixtures by railroad to Lewisburg Station for the sum of $550 — five hundred and fifty dollars.

“ If you conclude to send it please inform me by mail at once, and if not, please also inform me, so that w*e may know what to do, as we can get one at some other place.

" “Yours truly,

“Paul Geddes,

.“Treasurer.”

“ Beach Haven, April 25tb, 1865.

“ Paul Geddes, Esq.

“Dear Sir : Your valued favor of the 21st inst. reached me yesterday, and would have been replied to at once, but in order to give you a definite answer wanted to see the man about having the rope spliced; so I went to Espy on the freight yesterday after receiving your letter. The man will be here this morning and .splice the rope to-day, and, if possible, will ship it to-morrow.

“ Very truly yours, etc.,

“D. G. Driesbach.”

On the 2d of May, 1865, the plaintiff paid defendant $550 for the rope.

The plaintiff gave evidence that the rope was not a good rope, that the wire was rusty and weak, that it broke in stretching it, etc.

On the'hOth of May, 1865, Mr. Geddes, the treasurer, wrote to defendant, stating the rope was not such as defendant had represented, but that it had broken, not being strong enough to bear its own weight, etc.; that they would try it again, and saying further: “ If it does not answer as you represented it we will put it on the reel again and ship it back to you at Beach Haven. Expecting you to return us the money without any further trouble, as we made the purchase entirely on your representation, that it was all right. So far it has not proved so.”

The defendant replied May 23d, 1865, saying: As regards the wire rope I sold you, you need not have any fear as regards the money you paid me for it, if it does not prove sufficient, as I would not deceive you or your company for half a dozen such ropes and also insisting that the rope was as he represented it.

Geddes, the treasurer, testified that the reason he did not send the rope back was, that he did not consider it worth *180anything but for old iron, and it could be sold at Lewisburg as well as anywhere else. .

Defendant testified that he did not warrant the rope that it was a good rope, and gave evidence generally in auswer to plaintiffs’ case.

The Coi^rt charged

*" ... .*When a person sells goods to another and there is no fraud or warranty, an action cannot be maintained. If the seller makes representations as to the quality of the goods which are not true, and which he knew at the time was not true, he is liable to an action. In this case, however, the plaintiffs seek to recover on the ground that there was an express warranty, and they can recover only by establismng to the satisfaction of the jury that there was a warranty.....If you find from the evidence that there was a warranty, on the faith of which the defendant agreed to purchase the rope and paid for the same, then the next matter to be ascertained and found by the j ury from all the evidence is whether there was a breach. ... It is alleged on the part of the defendant that the only contract he had with the plaintiffs is contained in a certain proposition made by Paul Geddes, treasurer, on the 21st day of April, 1865, in a letter of that date addressed and sent to him, and his reply thereto on the 25th day of April, 1865. If this is so, and*you so find from all the evidence in the cause, then there can be no recovery in this case, because there is nothing in these letters constituting a warranty, and if there was no express contract of warranty of the quality of the rope in question, then the plaintiffs cannot recover. But if there was an express contract of warranty made by the defendant with the president of the bridge company, plaintiffs in this case, as alleged and on the faith of which the plaintiffs agreed to purchase the rope, then if there was a breach of said contract the plaintiffs will be entitled to recover.”

The defendant’s points with their answers are as follows:

1st point. “ The plaintiffs having made an offer in writ- ■ ing by their letter of April 21st, 1865, which was accepted by"the defendant by his letter of April 25th, 1865, these constitute the contract between the parties.”

“ I answer this as requested. When parties have deliberately put their engagements into writing it is presumed that the whole engagement of the parties was reduced to writing, and this may be done by a proposition in writing by one and an acceptance by the other, and the general rule is that oral testimony is not admissible to contradict, vary, or materially affect, by way of explanation, any written *181contract, and evidence of a distinct, independent parol agreement which varies, alters, or contradicts the written contract is always excluded. But I do not understand this rule to exclude parol testimony of an additional and suppletory agreement which does not vary, alter, or contradict the written contract: 1 Greenleaf on Evidence, section 304, page 402; Ohalfant *v.*Williams *et*al., 11 Casey, 212; and if it is intended by this point to ask me to charge you that there was ho other or additional contract of warranty made by the defendant with William Cameron, Esq., the president of the bridge company, plaintiffs, he acting on the part and in behalf of the said company, I cannot so charge you, and leave that question, whether there was such a contract of warranty or not, to be fouud by you as a matter of fact under all the evidence in the cause.”

2d point. “ Even if the jury believe that the .defendant said he would warrant the rope to be a good one, and it did not afterwards turn out as represented, a letter.having after-wards been sent by the direction of the plaintiffs to the defendant, promising to 'return the rope if it did not answer the purpose, and expecting the money returned, and the defendant having answered the letter by saying that the plaintiffs could have their money, and the plaintiffs *never having returned the rope*nor *offered to do*so, cannot recover in this suit.”

“ I cannot answer this point as requested. This is an action to recover damages for a breach of warranty. The plaintiffs do not seek to rescind the contract, but only to recover damages for breach of warranty. They have the goods, that is, the rope and fixtures which they agreed to purchase, and the measure of damages is, if there was a warranty and a breach, as I stated to you in my general charge; the plaintiffs were not bound to return the rope before bringing this suit, and in my opinion, the letter of Mr. Geddes referred to in this point is not an estoppel, and does not preclude the plaintiffs from recovering in this cáse. They had perhaps a right to return the rope if it was not good and sound, and claim the price paid ; but having kept the rope, they can now only claim damages for breach of the warranty, if any there was.”

3d point. “ The plaintiffs having caused a letter to be sent to the defendant promising to try the rope again, and if it did not answer as represented that they would put it on the reel again and ship it back to defendant at Beach Haven, and expecting the defendant to return the money, and the defendant having replied that the money would be refunded and that there would be no trouble about it: there being *182no evidence in the cause that the rope was ever returned, or that the plaintiffs ever offered to do so, but on the contrary, the evidence of the plaintiffs showing that they still have the rope and fixtures in their possession, cannot recover.”

“ I decline to answer this point as requested.”

The verdict was for the plaintiffs for $425.

The defendant took a writ of error, and assigned for error the answer of the Court to his points.

*S. P. Wólverton*and *J. W. Comly,*for plaintiffs in error.

The contract being in the letters it could not be added to by the parol testimony as to warranty: Kain *v.*Old, 2 Barn. & Cress., 627; 1 Sugden on Vendors, 194. Where there are representations amounting to a warranty, and the contract is afterwards consummated by writing without warranty, evidence of the previous representations is inadmissible: j Hilliard on Contracts, 167, sect. 8, a.; 162, sect. 4, *a.*Parol contract, contemporaneous with a written contract, cannot vary it: Harbold *v.*Kuster, 8 Wright, 392; Collins *v.*Baumgardner, 2 P. F. Smith, 461; 1 Hilliard on Contracts, p. 10, sect. 15, p. 14, sects. 19, 20, 21.

*W. G. Packer*and *J. B.*Packer, for defendants in error.

The letters were not designed to contain the whole of the agreement, nor the final iutention of the parties ; the verbal statements in connection were part of it: 1 Greenleaf’s Evidence, sect. 275, 304; Filkins *v.*Whyland, 24 N. Y. Rep, 338 ; Koop *v.*Handy, 41 Barbour, 454. Even if the letters were the contract for the sale of the rope, the verbal promises were evidence of warranty: Chalfant *v.*Williams, 11 Casey, 212; Martin *v.*Berens, 17 P. F. Smith, 462 ; Coughenour *v.*Suhre, 21 Id , 464; Bank *v.*Fordyce, 9 Barr, 275. The defendant offered to warrant when they were first in treaty; and it is a warranty, though sale was afterwards closed : 1 Hilliard on Contracts, p. 289, sec: 18; Wilmot *v.*Hurd, 11 Wendell, 584; Hogins *v.*Plympton, 11 Pickering, 97. In a suit on a warranty a return of the goods is not necessary: Fielder *v.*Starkin, 1 H. Black., 19; Flynn *v.*Allen, 7 P. F. Smith, 486 ; Borrekins *v.*Bevan and Porter, 3 Rawle, 44; Babcock *v.*Case, 11 P. F. Smith, 431. Where there is a breach of an express warrauty the vendee may, though he have retained the goods, either give the breach in evidence in an action for the price, or sue upon the warranty: Street *v.*Blay, 2 Barn. & Ad., 156 ; Benjamin on Sales, 750 ; Hanover’s Law of Horses, 174-176 ; Dean *v.*Herrold, 1 Wright, 154; *183Pateshall *v.*Tranter, 3 Ad. & Ell., 103; Erringer *v.*Miller, 3 Philadelphia Reports, 344.

Judgment was entered in the Supreme Court, July 2d, 1874.

Per Curiam :

If the letter of th<e plaintiffs by the treasurer of the 21st of April, 1''65, and the defendant’s reply contained the only contract between the parties, the plaintiffs could not recover in this action ; and so the Court distinctly charged in answer to the defendant’s first point, and in the latter part of the general charge. But this was fairly submitted to the jury on sufficient, evidence, and found by them adversely to the defendant. This being so, the Court was right in refusing to affirm the defendant’s second and third points, the action being founded on the express warranty, and not on the written proposition to return the rope. The warranty being found by the jury, the plaintiffs could either return the rope and demand the price under the written offer, or retain it and recover the damages under the warranty. The judge’s charge appears to have been fair and adequate.

Judgment affirmed.