Daggett & Graves v. Johnson

49 Vt. 345

• Court: Supreme Court of Vermont
• Decided: January 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This action is general assumpsit to recover the price of a quantity of milk-pans. In this form of action, there must have been an absolute and completed sale. The contract was negotiated by Mrs. Gibson, agent of the plaintiffs, and reduced to writing, and signed by defendant. The contract is in these words:

Shrewsbury, April 10, 1875.

Messrs. Daggett & Graves : — You will please send me on the 20th day of April,, one set of Jewett’s Patent Milk-Pans for 15 cows (capacity 30 U. S. gallons), for which I agree to pay you as follows: |80, if satisfied with the pans. I will pay the first of July, with 5 per cent. off. The above sum includes all the fixtures, the tables and water tank, delivered on the cars at Vergennes, Vt. R. W. Johnson.

Mrs. J. P. Gibson, agent.

The plaintiffs accepted the order and delivered the pans. The defendant received the pans and used them like ordinary pans until the first week in June, and then notified the plaintiffs to take them away, and refused to pay for them. The court received parol testimony, against defendant’s objection, “ to show the form of the articles; the manner of their use, and the understanding of the parties in respect thereto at the time the contract was made.” This is clearly a written contract, and possesses no latent ambiguity ; and by a well-settled rule of law, cannot be qualified, controlled, enlarged, nor diminished by any contemporaneous parol understanding. The admission of the talk and understanding of the parties at the time the written contract was made and delivered, we think was error. The law presumes that all the talk in the negotiation deemed essential, is included in the written consummation of the contract.

The construction of the pans and their appendages, and the manner of their use as indicated by the construction, are all matters proper to be considered in determining whether the defendant has done all that the contract required of him; but no contemporaneous parol agreement can be permitted to modify or supplant the written contract.

The contract of the defendant requested plaintiffs to deliver the pans to the defendant, and he agreed to pay them therefor $80 on the first of July, “if satisfied with the pans.” We think the ruling of the court, that the defendant had no right to say, arbitrarily and without'cause, that he was dissatisfied, and would not pay for the pans, was sensible and sound. The pans were made with appliances to graduate the temperature of the milk by running water; and in that, consisted their excellence. Without these, they were like other pans, save their greater capacity. All this the defendant well knew. If a man orders a garment made of given material and fashion, and promises to pay if satisfied, he cannot say that the garment, in material and manufacture,- is according to the order, and yet refuse to test the fit or pay for it. He must act honestly, and in accordance with the reasonable expectations of the seller, as implied from the contract, its subject-matter and surrounding circumstances. His dissatisfaction must be actual, not feigned; real, not merely pretended. Manufacturing Co. v. Brush, 43 Vt. 528. As some portion of the testimony upon which the facts were found by the court below was erroneously received, judgment is reversed, and the cause remanded.