
    (72 Hun, 26.)
    PHELPS et al. v. GAMEWELL FIRE-ALARM TEL. CO.
    (Supreme Court, General Term, First Department.
    October 13, 1893.)
    1. Evidence Made Competent by That oe Adverse Party.
    In an action for the contract price of a machine sold to defendant, evidence by plaintiff as to specific instances of its mismanagement by defendant’s servants, resulting in its failure to do its work, does not authorize the introduction of evidence by defendant showing, in a general way, that its employes are skillful men. '
    
      2. Appeal—Review—Objection not Raised Below.
    In an action on a written contract, an exception to the refusal of the court to admit evidence as to prior oral negotiations will not be reviewed on appeal, on the ground that the written instrument is ambiguous, where no such claim was made before the trial court.
    8. Parol Evidence—Ambiguity.
    Where a written contract for the manufacture of a machine fully describes it, and specifies its power and capacity, a further provision that the manufacturer shall “guaranty” it for two years does not render the contract ambiguous, sc- as to justify the admission of paroi evidence, since the word “guaranty"’ necessarily relates to that which the manufacturer promised in the written contract.
    Appeal from circuit court, ¡New York county.
    Action by Lucius J. Phelps and Samuel K. Dingle against the Gamewell Fire-Alarm Telegraph Company for a balance alleged to be due on a contract between the parties. From a judgment in plaintiffs’ favor, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before O’BRIEN, FOLLETT, and PARKER, JJ.
    Charles A. Judson, for appellant.
    O. B. Gould, for respondents.
   PARKER, J.

The contract which lies at the foundation of this controversy is in writing, and comprised in the two letters following:

“New York, January 20th, 1890.
“J. W. Stover, Esq., President Gamewell Fire-Alarm Telegraph Co., Boston, Mass—Dear Sir: We hereby agree to furnish you a Domestic Gas Machine capable of supporting 400 lights of sixteen candle power each, with reservoirs of 720 gallon capacity; pressure tank, 60 gallon capacity; supply tank of 70 gallon capacity; 150 quarts of glycerine; 400 burners; set up the same, and connect it with the gas pipes of your factory near Boston, Mass.; furnishing 50 feet of main,—ah complete and in perfect working order, (except excavating and gasoline;) and guaranty the same for two years,— for the sum of $633.00, and traveling expenses of expert. Payments to be made as follows: $200, thirty days from starting of the machine; $200, sixty days from starting of the machine; $233, ninety days from starting of the machine.
“Respectfully submitted, Phelps & Dingle.”
“N. Y. City, February 10, 1890.
“Domestic Gaslighting Co., N. Y. City—Gentlemen: Please furnish for our new factory at Upper Newton Falls, Mass., the 400 light plant covered by your proposal, guaranties, &c., &c.
“Yours, very truly, J. W. Stover,
“President.”

The recovery had was for the unpaid balance of the contract price, with interest. Defendant alleged in its pleading, and attempted to prove, failure of performance on the part of the plaintiff, and sought to recover, by way of counterclaim, so much of the purchase price as it had already paid. Whether plaintiffs had fully performed their part of the contract was fully and fairly presented to the jury by the learned trial court, and their finding was necessarily to the effect that it had been. It is true that for some reason the gas machine did not accomplish for the defendant what it had hoped and expected from it, but the jury likely reached the conclusion that this was due, not to the fault of the machine, but rather to the unskillful manner in which defendant’s employes in charge managed it. After an examination of the testimony of the witnesses and the correspondence between the parties, we have-determined that the finding of the jury is fully supported by the-evidence.

Appellant insists that, because certain evidence adduced on the-part of the plaintiffs tended to show that the failure of the gas machine to meet the expectations of the defendant was due to the neglectful and unskillful manner in which it was operated, it was error for the court to have sustained the objection to the following question: “What is the character of the hands that you employ,, so far as their capacity is concerned?” It is urged that the answer to the question, had it been allowed, would have shown that defendant’s employes were skillful, and thus have tended to contradict plaintiffs’ testimony that the machine was unskillfully managed. In the first place, plaintiffs’ evidence was directed to specific instances of mismanagement, which, resulted, in a failure of the machine to do its work. These specific allegations the defendant could have met, if untrue, by calling the person in whose charge it had placed the machine to deny it, and at the same time demonstrate his qualification to manage it, but it could not be done by showing, in a general way, that its employes were skillful men. Doubtless, they were, in their particular field of labor, which the-witness had already testified was that of manufacturing fire and police telegraph apparatus; but it does not at all follow, because they were skillful in that direction, that they understood how to manage a gas machine, and there is nothing in the record to suggest that the question was asked with any such purpose in view.

Exception was also taken to the refusal of the court to permit the same witness to tell what the negotiations in regard to the-machine were, prior to the two letters which constitute the contract between the parties. Defendant now contends that there is some ambiguity about the contract, particularly with reference to the use of the word “guaranty,” which requires paroi proof to make plain, and he cites, in support of his position, White’s Bank Case, 73 N. Y. 337. In the first place, it may be said that, if there was an ambiguity, defendant’s exception would not entitle it to a reversal.. There was nothing in defendant’s question, or in the suggestion made by its counsel to the court, from which the court could understand that defendant claimed an ambiguity. Defendant’s president testified that he was the member of the corporation with whom the-negotiations in regard to the machine were had. . Then followed the question: “Question. Will you tell us what they were?” Objection was thereupon made “that the contract had been reduced' to writing, resulting in a merger of the prior oral negotiations;”' and in sustaining the objection the court but followed a well-recognized rule of evidence. Had the defendant any other object in view than that naturally suggested to the court by its question, it should have disclosed it. But we do not discover an ambiguity which seems to call for paroi testimony to make clear the meaning of the parties. Plaintiffs’ proposal was in terms definite. They proposed to furnish a “Domestic Gas Machine.” As to its capacity, it was provided that it should be capable of supporting 400 lights of 16 candle power each, “with reservoirs of 720 gallon capacity; pressure tank, 60 gallon capacity; supply tank, 70 gallon capacity; 150 quarts of glycerine; 400 burners.” Thus ivas described the kind of machine, its power, and capacity. The proposal further provided that the plaintiff should set up the machine and make the connections, “all complete and in perfect working order, and guaranty the same for two years.” As used, the word “guaranty” necessarily related to that which the plaintiffs promised in their writing. The connection in which it is employed does not even suggest the necessity of going outside of the writing in order to understand fully what the parties intended to guaranty. The cases cited by appellant, therefore, have no application. The judgment should be affirmed, with costs. All concur.  