
    The A. H. Andrews Company, Respondent, v. Charles D. Morgan, Appellant.
    First Department,
    November 12, 1915.
    Contract — sale — agreement to manufacture,-deliver and install opera chairs construed — action for breach of contract — evidence.
    In an action for the breach of a contract under which the plaintiff was to manufacture, deliver and install opera chairs for the defendant’s theatre, it was alleged that the defendant repudiated the contract before the manufacture of the chairs. The action was defended upon the theory that it was the duty of the plaintiff under the contract before manufacturing the chairs to present to the defendant for approval a sample chair of the quality and design agreed upon by the parties and that plaintiff failed so to do, and thereupon defendant rescinded the contract. The agreement was negotiated orally between plaintiff’s salesman and defendant’s architects and subsequently reduced to writing. Both parties understood, however, that their contract was not sufficiently complete to preclude a misunderstanding, and they contemplated that a sample chair should be first manufactured by the plaintiff and submitted to the defendant for approval. After such chair was submitted and inspected the defendant objected thereto, but plaintiff failed and refused to remedy the defects.
    
      Meld, on all the evidence, that it was error for the trial court to rule, as matter of law, that the writing constituted the entire contract and that evidence of the parol negotiations was not admissible for any purpose and to exclude evidence offered by the defendant to show specifically that the sample chair did not correspond with the samples exhibited during the negotiations for the contract.
    The defendant was not bound by testimony of the plaintiff tending to show that the sample chair was in- accordance with the requirements of the contract and should have been permitted to controvert it.
    Appeal by the defendant, Charles D. Morgan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of December, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on or about the same day, denying defendant’s motion for a new trial made upon the minutes.
    
      W. H. Gilpatric, for the appellant.
    
      Ralph S. Rounds, for the respondent.
   Laughlin, J.:

This is an action to recover damages for breach of a contract by which the plaintiff, which is an Illinois corporation, was to manufacture, deliver and install 750 opera chairs for the defendant’s theatre at Winnipeg, Manitoba. The breach assigned is the repudiation of the contract by the defendant before the manufacture of the chairs, and the recovery has been measured by the profits which the plaintiff would have made had it been permitted to perform the contract.

The theory upon which the action was defended is that it was the duty of the plaintiff under the contract before manufacturing the chairs to present to the defendant for approval a sample chair of the quality and design agreed upon by the parties, and that plaintiff failed so to do and thereupon defendant rescinded the contract. The contract was negotiated orally between the plaintiff’s salesman, Kenfield, and defendant’s architects, Jordan & Over, at Winnipeg; and they reduced their agreement to writing and signed it for their respective principals on the 24th day of June, 1912. The plaintiff was designated the party of the first part and the defendant the party of the second part. The provisions of the contract thus reduced to writing, so far as material to the appeal, recite that the defendant purchased and ordered 750 “No. 102” opera chairs at four dollars and forty cents per chair according to the specifications for the chairs thereto annexed, and agreed to pay therefor on completion of the contract; and that the plaintiff agreed to manufacture, transport, deliver and install the chairs for use in the theatre in accordance with a plan or diagram of the theatre to be furnished by the defendant. The contract contained further provisions, as follows: “ It is expressly understood and agreed that any verbal statements or agreements, not incorporated in this agreement, shall not be binding on either party, and this agreement shall supersede all previous proposals.

This contract is made subject to the approval of the party of the first part, and shall not be binding upon the party of the first part unless and until it shall have been passed upon and accepted by an officer of the corporation.”

There was annexed to and made part of the contract printed matter and plans headed “Shipping Directions and Specifications,” containing a general provision that the chairs should be “gloss finish unless otherwise specified.” Following this provision were four columns, in part printed and in part blank, the first of which was headed “ Specifications; ” the second “Location Lower Floor, Style No. 102;” the third “Location Style No.” and the fourth the same. The blanks were filled in to show that birch wood was to be used and that the “finish of wtiods (color, etc.)” was to be “Antiq. Mahog.;” that the color of the. ends of the castings was to be gold gilt and the middles olive green; that the arm rests were to be “No. 15,” and the description given for the backs of the chairs was “No. 102,” and opposite this and in the column headed “Location Style No.” there was written “Edge to be l-%" thick including veneer; ” and the description given for the seats was “ Reg. Squab;” and the material to be used in upholstering and the color and kind was described as “ Imit. Leather No. 87,” and it was stated that it was preferred that the average width of the chairs should be nineteen inches. The foregoing are the material provisions of the specifications and all of the provisions thereof that would aid in determining whether or not the chairs furnished would be in accordance with the agreement of the parties. Following these columns there were provisions to the effect that “ any variations or change from regular style of chair must be fully specified hereon,” and that the plaintiff agreed to “place chairs on board cars at Chicago not later than July 30th under penalty of $50.00 per day provided sample Opera Chairs ordered to-day is approved by party of 2d part on day received at Winnipeg. Party of 1st. part agree to have all Opera Chairs installed so they can be used in 5 days after arrival in Winnipeg—provided house is ready with clear and unobstructed floor space.”

It is manifest that the only theory upon which it may be said that the entire contract was reduced to writing is that this was a sale in part by sample, for, without a reference to the general style of chairs manufactured and sold by the plaintiff as No. 102, and armrests No. 15, and imitation leather No. 87, and regular squab seats, resort must be had to the parol negotiations of the parties for the complete terms of the contract. There is nothing to show the height of the chairs, either from the floor to the top of the hack, or from the floor to the seat; and there is nothing to show the form or design or dimensions other than that the edges of the backs of the chairs were to be one and one-fourth inches thick, and that it was preferred that they should be on the average nineteen inches in width; but there is no provision regulating the thickness of the rest of the back excepting by having recourse to the styles of chairs manufactured by plaintiff and known by the numbers specified.

The uncontroverted evidence shows that plaintiff’s salesman exhibited five sample chairs to defendant’s architects at the time the contract was negotiated, and a sample of the imitation leather used by plaintiff in upholstering chairs. It is evident that both parties understood that then* contract was not sufficiently complete or definite to preclude a misunderstanding with respect to their agreement, and that they contemplated that a sample chair should be first manufactured by the plaintiff and submitted to defendant at Winnipeg for approval. The provisions of the contract relating to the sample chair are not fairly susceptible of the construction for which plaintiff contends, namely, that the only purpose thereof was to limit the time within which plaintiff was required to furnish the chairs. The plaintiff did prepare and ship a sample chair to defendant for approval on the* second of July after the contract was made, and on the same day it notified defendant’s architects by letter that subject to the approval of its credit department it had “ entered ” the contract, and further stated that it was shipping a sample chair for approval, and requested defendant to advise on receipt of the sample “if it is in accordance with your understanding, and we are quite sure that it wifi be more than you expected.” The letter also stated that the time within which defendant had insisted upon delivery was very short, and that unless plaintiff received prompt approval both of the sample chair and of a plan for the seating arrangements by telegraph it would not agree to deliver on board cars at Chicago by July thirtieth, and, therefore, the architects were requested to give the matter immediate attention. The sample chair reached the architects on the fifth of July. After inspecting it they wired the plaintiff to the effect that it did not conform to the agreement and was not acceptable; that a better quality,of covering was required; that the seats should be padded differently, and that there should be more padding in the backs of the seats; that the shape and size of the seats were not satisfactory, and that a corrected sample should be furnished, and that they were writing more in detail. Without awaiting the receipt of the letter plaintiff next day wired the architects that the sample was made in accordance with the contract, but saying it would await receipt of the letter. The letter written by the architects to the plaintiff pointed out their objections to the sample chair and specified that the imitation leather covering was unsuitable and appeared like painted canvas, and that it was represented to them that the very best imitation leather would be used and that that used on the sample was not such. They also pointed out that it was represented to them that the seats would be padded with sea moss with a heavy layer on top of electric cotton, and that the sample was only padded with tow and with very coarse cotton and gave the seats “ a coarse, cheap appearance;” that plaintiff’s salesman agreed that the backs of the chairs “would be fully equal” to a sample exhibited at the time the contract was negotiated, and that the back of the sample submitted for approval was at least one inch thinner than the sample according to which the contract was made, and they requested that another sample chair be made rectifying the defects which they pointed out and offered to allow eight days additional time, and asked for an immediate answer by wire. Evidently there were further negotiations between the parties, as shown by the correspondence, some of which was excluded on objection by. plaintiff and which was marked for identification and is in the record; but plaintiff failed and refused to remedy the defects pointed out in the sample chair, and the defendant placed an order for chairs elsewhere.

On the tidal the court ruled as matter of law that the writing constituted the entire contract and that evidence of the parol negotiations was not admissible for any purpose, and excluded evidence offered by the defendant to show specifically that the sample chair did not correspond with the samples exhibited during the negotiations for the contract with respect to the hack, the imitation leather, the upholstering or the seat. Evidence was given in behalf of the plaintiff tending to show that the sample chair was in accordance with the requirements of the contract; that it was made of the material called for by the contract and specifications and was finished in accordance with the contract; that the backs were plaintiff’s “ No. 102 ” backs; that the seats were plaintiff’s regular squab seats, which were of tow and cotton; that the imitation leather used on the sample chair was the same as that exhibited when the contract was negotiated, and that the number in connection with the imitation leather ref erred only to the color. The defendant, however, was not bound by this testimony and should have been permitted to controvert it and to show that the sample chair was not like the sample parts used in the negotiations and represented to his architects to be the same as those described in the specifications. If this were not so fraud could be perpetrated by inducing defendant to sign a contract for a particular style of chair as the one manufactured by plaintiff and designated by a number when in fact the chair so manufactured and designated was not as it was represented to he by the plaintiff and defendant would be obliged to resort to a suit in equity to have the contract annulled. We think he was not obliged to take that course, but may show in defense of this action that even though the sample chair may be the same as plaintiff’s No. 102 chair it is not the same as the samples which were represented to be like plaintiff’s No. 102 chair. This is true with respect to the imitation leather and all parts of the chair.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, costs to appellant to abide event.  