
    William J. Kenney vs. Theodore W. Foster & Bros. Co.
    PROVIDENCE
    NOVEMBER 25, 1903.
    Present: Stiness, C. J., and Douglas, J.
    (1) Covenant. Contradicting Written Instrument. Pleading.
    
    Declaration set out a written agreement, under seal, binding defendant to . furnish plaintiff “such samples as said party of the first part (defendant) shall deem necessary and proper;” and alleged that by a verbal agreement made previously to the written one, the defendant became bound to fur- ' nish enough samples for trips of six weeks each. On demurrer:—
    
      Held, that the quantity as well, as the quality of the samples to be furnished was left to the judgment of defendant.
    
      Held, further, that the allegation of the verbal agreement contradicted the written instrument.
    
      Held, further, that the breach alleged was that of the inadmissible verbal agreement, not of the covenant set forth in the declaration.
    Covenant.
    Heard on demurrer to declaration, and demurrer sustained.
    
      Thomas H. Holton, for plaintff.
    
      Walter B. Vincent, for defendant.
   Per Curiam.

The written agreement under seal set out in the declaration binds the defendant to furnish to the plaintiff “such samples as said party of the first part,” the defendant, “shall deem necessary and proper.” The quantity as well as the quality of the'samples to be furnished is thus left to the judgment of the' defendant. The allegation that by a verbal agreement made previously to the written one the defendant became bound to furnish enough samples for trips of six weeks each contradicts the written instrument. ■

The breach alleged is a breach of the inadmissible verbal agreement, not of the covenant set forth in the declaration.

The demurrer is sustained.  