DeWitt v. Berry
134 U.S. 306 (1890)

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U.S. Supreme Court

DeWitt v. Berry, 134 U.S. 306 (1890)

DeWitt v. Berry

No. 173

Argued January 7-8, 1890

Decided March 17, 1890

134 U.S. 306




If a contract of sale is in writing and contains no warranty, parol evidence is not admissible to add a warranty.

If a contract of sale in writing contains a warranty, parol evidence is inadmissible to show a warranty inconsistent with it.

An express warranty of quality in a sale excludes any implied warranty that the articles sold were merchantable.

A warranty cannot be implied in a sale when there is an express warranty of quality accompanied by the delivery and acceptance of a sample as such.

The party who seeks to establish that words are used in a contract in a different acceptation from their ordinary sense must prove it by clear, distinct and irresistible evidence.

When parties have reduced their contract to writing without any uncertainty as to the object or extent of the engagement, evidence of antecedent conversations between them in regard to it is inadmissible.

This action was commenced in the Marine Court of the City of New York to recover $1,687.51, alleged to be due plaintiffs for a quantity of varnish, etc., sold and delivered to defendants between November 9, 1881, and May 15, 1882. It was duly removed into the Circuit Court of the United

Page 134 U. S. 307

States for the Southern District of New York on the petition of the defendants, the plaintiffs being citizens of Michigan, the defendants, citizens of New York, and the amount sought to be recovered, exclusive of costs, exceeding $500.

The record appears to contain substantially all the evidence. It shows the material facts to be as follows. On the 24th of June, 1881, a contract was made between the parties in these terms:

"Brooklyn, N.Y. June 24th, 1881"

"We hereby agree to deliver to Messrs J. H. De Witt & Son at their factory in Brooklyn, in N.Y., eighty (80) barrels of japan and twenty (20) barrels of varnish within one year from date. These goods 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."

"Turpentine copal varnish at 65c. per gallon."

"Turpentine japan dryer at 55c. per gallon."

"Each shipment to consist of eight (8) barrels japan and two (2) barrels varnish, to be made once a month, commencing September next. Terms on each shipment, six months, without interest."


"Per A. HOOPER, Manager"

"We hereby accept the above proposition."


"Brooklyn, June 24th, '81"

At the time stipulated, the defendants in error, Berry Bros., delivered the proper number of barrels of varnish and of dryer, but the plaintiffs in error claim that the dryer did not conform to the contract in quality. They not only resist the payment of a balance due of the purchase money, but also present a cross-demand for $17,500 for alleged breach of contract. The precise point of controversy is as to the relative quantities of turpentine and of benzine in the dryer. It appears that plaintiffs in error were manufacturers of wire

Page 134 U. S. 308

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 further 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 use. 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 claim that under the contract, the defendants in error were obliged 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."

Page 134 U. S. 309

They claim further that the defendants in error had fraudulently 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 1/3 of turpentine, and were known to the trade as "benzine goods." The defendants in error, on the other hand, maintain 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." Plaintiffs 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 $2,177.57, being the full amount of the demand and costs, to review which judgment this writ of error was sued out. The plaintiffs in error claim by their assignments that the court in the trial below committed 16 different errors.

Page 134 U. S. 311

MR. JUSTICE LAMAR, after stating the facts as above, 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 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

Page 134 U. S. 312


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. 353, Dean v. Mason, 4 Conn. 432; Reed v. Wood, 9 Vt. 285; 1 Parsons on 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 Sumner 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

Page 134 U. S. 313

held to be inadmissible. 1 Greenleaf on Ev.

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