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Statement of the Case.

gauze for screens, etc., and bought the dryer to use in their factory, and that the plaintiffs in error knew of these facts. The japan dryer and the copal varnish were used to mix with the paint that was put on wire goods. The process was that the wire cloth ran through a trough filled with the paint so mixed, and passed between felt rollers into a drying chamber heated by steam to 140 degrees. At the farther end of such chamber the cloth passed into the cold air. The rolls then stood four or five days, after which they were rolled into tight rolls, wrapped, and put into the storehouse. The plaintiffs in error allege that the paint and varnish, in this case, were adulterated by the excessive use of benzine in their manufacture; and that for that reason the paint did not adhere to the wire cloth, but scaled off.

Plaintiffs in error commenced using the dryer and varnish in question about their business in August, 1881; but the goods prepared with them did not, in the ordinary course of business, reach the consumers until May, 1882. It was then that plaintiffs in error first discovered the defect — the composition of the goods being unknown to them, and only discoverable either by a chemical analysis or by the results of

In the fall of 1882 large quantities of the wire cloth were returned because the paint came off; and the balance that plaintiffs in error had on hand unsold proved to be unsalable for the same reason, and had to be cleaned off and repainted; there being some 3,500,000 square feet damaged one-half cent per square foot, or $17,500.

Plaintiffs in error further claimed, that, under the contract, the defendants in error were ebliged to furnish articles of a grade that commercially answered to the description of “turpentine copal varnish,” and “turpentine japan dryer;" and that such grades were commercially known. That the articles so known contain either very little or no benzine, and are made of turpentine ; whereas, if made of benzine, without turpentine, they are called in trade a “ benzine copal varnish” and a “ benzine japan dryer;” and if they contain half benzine and half turpentine, they are called a “turpentine and benzine japan dryer,” or a “turpentine and copal varnish.”


Argument for Plaintiffs in Error.

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They claimed further that the defendants in error had fraudųlently substituted inferior goods for those sold; that whereas, by the description in the bill of sale, they were to have received goods with little or no benzine, they were furnished with goods which, on analysis, were shown to have 38 parts of benzine to 6} of turpentine, and were known to the trade as “benzine goods.” The defendants in error, on the other hand, maintained that the contract did not call for goods known to the trade as “commercial turpentine " goods, for two reasons: (1) By the very terms of the contract the quality was agreed to be tested by a different standard, which was, that the goods sold were 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;" and (2) because there was no such standard of uniform manufacture and terminology in the trade, as to these goods, as was claimed by the plaintiffs in error, they themselves having discovered that their process was bad, and afterwards changed it.

It appears further from the record that in a previous contract between the defendants in error and the De Witt Wire Cloth Company - not the plaintiffs in error — a stipulation had been inserted that the goods should be “the best of their kind, and equal to those formerly furnished.” Plaintiff's in error maintained that this contract of quality is, by reference, a part of the contract. This view the court rejected.

In the course of the trial there were several exceptions taken to the introduction, or the refusal to permit the introduction, of evidence. The plaintiffs in error also made several exceptions to the charges as given, and to the refusals to charge as requested.

The trial resulted in a verdict and judgment for the defendants in error for the sum of $2177.57, being the full amount of the demand and costs; to review which judgment this writ of error was sued out. The plaintiffs in error claimed by their assignments that the court in the trial below committed sixteen different errors.

Mr. Mason W. Tyler (with whom was Mr. Henry Edwin Tremain) for plaintiffs in error.

Argument for Plaintiff's in Error.

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I. Under the contract in this case defendants in error were bound to deliver articles that answered to the commercial description “turpentine copal varnish” and “turpentine japan dryer.” Nichol v. Godts, 10 Exch. 191; Josling v. Kingsford, 13 C. B. (N. S.) 447; White v. Miller, 71 N. Y. 118; Hawkins v. Pemberton, 51 N. Y. 198; Henshaw v. Robins, 9 Met. 83; S. C. 43 Am. Dec. 367.

II. The whole controversy in the case at bår centred around the question whether the goods that defendants in error delivered to plaintiffs in error were 'or were not “turpentine" goods.

III. It was error in the court to refuse to charge the jury as asked for in the request recited in the first assignment of error, to wit, that the evidence showed without contradiction that goods compounded of an equal quantity of turpentine and benzine are commercially designated and known in trade as “turpentine and benzine,” or “union” goods; and the court also erred in the same direction in stating that Mr. Wood testified that an article .of which the liquid portion is half turpentine and half benzine is commercially known as “turpentine japan,” as stated in the second assignment of error. See Parks v. Ross, 11 How. 362; Toland v. Sprague, 12 Pet. 300; Schuchardt v. Allens, 1 Wall. 359; Merchants' Bank v. State Bank, 10 Wall. 604, 665; Marion County v. Clark, 94 U. S. 278.

IV. The court erred in refusing to allow plaintiffs in error to introduce evidence tending to show that the article which was the subject of the controversy in this case was not a merchantable article, as indicated in the fourth assignment of error, and also in refusing to charge, as requested by plaintiffs in their sixth, seventh and eighth requests, that in order to comply with their contract, defendants in error must have delivered to plaintiffs in error a fairly merchantable and salable article of turpentine japan and turpentine varnish, as indicated in the fifth, sixth and seventh assignments of error. Mody v. Gregson, L. R. 4 Ex. 49; Hoe v. Sanborn, 21 N. Y. 552; S. C. 78 Am. Dec. 163; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116; MacFarland v. Taylor, L. R. 1 Scotch App. 245.

V. The court erred in refusing to allow plaintiffs in error

Opinion of the Court.

to prove the difference in value between their cloth as painted with the Berry Brothers' material and the same cloth painted with a fair article of turpentine japan and turpentine varnish, as indicated in the eighth, ninth, tenth and eleventh assignments of error. Dushane v. Benedict, 120 U. S. 630, 636; Dart v. Laimbeer, 107 N. Y. 664; White v. Miller, 71 N. Y. 118; Passinger v. Thorburn, 34 N. Y. 634 ; S. C. 90 Am. Dec. 753; Milburn v. Belloni, 39 N. Y. 53; S. C. 100 Am. Dec. 403; Flich v. Wetherbee, 20 Wisconsin, 392; Masterton v. The Mayor, 7 Hill, 61; S. C. 42 Am. Dec. 38; Griffin v. Coler, 16 N. Y. 489; S. C. 69 Am. Dec. 718; Messmore v. New York Shot Co., 40 N. Y. 422; Wakeman v. Wheeler & Wilson Mf'g Co., 101 N. Y. 205.

Mr. John E. Parsons, for defendants in error, eited: Northwestern Ins. Co. v. Muskegon Bank, 122 U. S. 501; Sands v: Taylor, 5 Johns. 395; S. C. 4 Am. Dec. 374; Beck v. Sheldon, 45 N. Y. 365; Parkinson v. Lee, 2 East, 314; Jones v. Just, L. R. 3 Q. B. 197; Chanter v. Hopkins, 4 M. & W. 398; Mumford v. McPherson, 1 Johns. 414; Fox v. Hazelton, 10 Pick. 275; Gale v. New York Central Railroad, 13 Hun, 1.

MR. JUSTICE LAMAR delivered the opinion of the court.

It is not necessary to examine the sixteen 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 should 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 Brothers 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

Opinion of the Court.

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 Met. 350, 353; Dean v. Mason, 4 Connecticut, 428, 432; Reed v. Wood, 9 Vermont, 285; 1 Parsons on Cont. (6th edition) 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 by 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 Sumner, 567, Mr. Justice Story said: “I apprehend that it can never 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. Bụt 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

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