
    The Lamson Consolidated Store Service Co., App’lt, v. George C. Hartung, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    1. Evidence—Written contract.
    A written contract which contains all of the terms of an executory contract for the sale of specific machines is complete in itself, and paroi evidence is inadmissible to show a contemporaneous warranty.
    .3. Judgment—Warranty.
    A judgment rendered principally on the ground that there was a breach of warranty or guaranty cannot be sustained where no such breach was pleaded nor any attempt made to amend the pleadings in that respect.
    Appeal from a judgment in favor of the defendant on a counterclaim, in the district court of -the city of New York for the .sixth judicial district.
    
      Theodore H. Friend, for app’lt; Doyle & Stiles, for resp’t.
   Bookstaver, J.

This action was brought • to recover seventy-five dollars, being the amount claimed due from the defendant to the plaintiff on the second monthly instalment upon a contract for the purchase by the defendant from the plaintiff of two machines known as the Bamson Gash Eegister. The defendant pleaded a rescission of the contract and an offer to return the ■goods, and demanded the return of seventy-five dollars already paid plaintiff as a first payment when the machines were -contracted for.

The chief question in this case is whether the contract signed by the defendant was complete in itself and contained the entire •contract between the. parties, or whether a part of the contract rested in paroi so as to admit evidence to establish the oral part of the agreement.

The contract seems to us to be complete in itself, as it contains all of the terms of an executory contract for specific machines, and became binding upon both parties when accepted by the plaintiff. In Routledge v. Worthington Co., 119 N. Y., 592; 30 St. Rep., 195, it was said that whether the writing was regarded as an order merely or as an agreement was immaterial in determining this question. And the case of Seitz v. Brewers' Refrigerating Machine Co., U. S. Supreme Ct., Nov., 1891 (reported in N. Y. Law Jour, of Dec. 14, 1891), we think is conclusive of the controversy in this case. It seems to be nearly on all fours with the one under consideration. In that case the defendant, a purchaser of a machine described in the contract as a No. 2 Size Refrigerating Machine, set up false paroi representations as a ground for rescission and also a counterclaim for damages for breach of a paroi warranty made prior to or at the time of the sala In delivering the opinion, Fuller, 0. J., said, “ Undoubtedly the existence of a separate oral agreement as to any matter on which the written contract is silent, and which is not inconsistent with its terms, may be proven by paroi if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it, and when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole ‘ engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. Green! Ev., § 275. * The written contract was in all respects unambiguous and definite. The machine which the company sold and which Seitz bought was a ‘ No. 2 Size Refrigerating Machine ’ as constructed by the company, and such was the machina which was delivered, put up and operated in the brewery. A warranty or guaranty that the machine should reduce the temperature of the brewery to forty degrees Fahrenheit, while in itself collateral to the sale, which would be complete without it, would be part of the description and essential to the identity of the thing sold; and to admit of proof of such an engagement by paroi would be to add another term to the written contract, contrary to the settled salutary rule upon that subject”

But there is another reason why this judgment must be reversed. It was rendered, as we judge from the return, principally because there was a breach of warranty or guaranty. No such breach was pleaded, nor was there any attempt made to amend the pleadings as was done and allowed in the case last cited. But even on the evidence of the representations made before or at the time of the sale to Seitz, the court held that such-representations did not warrant the defendant in rescinding the contract. Seitz v. Brewers, etc., Co., supra, differs from Routledge v. Worthington Co., supra, in that in the-latter case the evidence was held admissible only for the purpose of proving a distinct collateral .agreement of the plaintiffs that they should not reduce the trade price of the same kind of goods they sold to defendant, and which agreement related to a subject separate and distinct from that to which the written order applied.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event

Bischoff, J., concurs.  