
    ELLIOTT SUPPLY COMPANY, Appellant, v. ROSS, Respondent.
    (168 N. W. 58.)
    (File No. 4270.
    Opinion filed June 25, 1918.)
    Evidence — Purchase of Silverware — Representations by Sales Agent re Brand, Oral Evidence of, Competency.
    Defendant signed an order for purchase from plaintiff of silverware at a specified price, a few items in which order were designated “Rogers Bros. 1847,” a greater number being designated “E. S. Ce. 1935;” the order guaranteeing the articles to be exactly as represented therein. Held, that testimony by defendant that when plaintiff’s agent took the order he represented he was selling only “Rogers Bros. 1847” brand of silverware, that the initials “E. S. Co.” in the order stood for Elliott Supply Company (plaintiff’s name) that the order was for Rogers Bros, brand and nothing else, and that the articles designated E. S. Co. were goods made especially for plaintiff; that he signed the order believing the entire shipment to be Rogers Bros, ware and would not otherwise have signed it — was not incompetent as. varying the terms of a written instrument; that the order does not purport to specify that all the enumerated articles were Silver-plated, or manufactured by Rogers Bros., but that if it did said evidence was still ■ competent to show the articles were not silver-plated, and were not all manufactured by Rogers Bros.
    Gates, J., not sitting.
    Appeal from Cirau.it 'Court, Day Oounty. Hon. Thomas L. Bouck, Judge.
    Action' by Elliott Supply Company, against A. Ross, to recover for purchase price of a consignment of merchandise. From a judgment for 'defendant, and- from an order denying a new trial, plaintiff appeals.
    Affirmed.
    
      Anderson & Wad del, for Appellant.
    
      Lezms W. Bicknell, for Respondent ;JN. P. Bruell, of 'Counsel.
    Appellant cited: Jones on Evidence, 2d Ed., p. 446: Mc-Quaid v. Ross, (Wis.), 46 N. W. 892; Jones v. Keefe, (Wis.), 150 N. W. 954.
    
      ' Respondent cited!: W. U. Tel. Co. v. Aim. Bell Tel. Co-. 103 Fed. 684.
   POLLEY, J.

This is an action for tlhie recovery of the purchase price of a consignment of merchandise, consisting principally of tableware. The verdict and judgment were for defendant, and plaintiff appeal's-.

The comb: act or order under which, sa-i-d' merchandise was s-hlipped to defendant i-s -in writing, arid- in order to get a, clear understanding of' the matters' .presented on- this appeal it is necessary to -set out the (contract, except the items enumerated, in full. The contract is as follows:

“Read this contract carefully.
“The (amount of this order is $180.00. [Here follows a list -of the articles s-old, a fewi of iwhi-ch are designated as ‘Rogers Bros. 1847 and a greater number of ■whi-ch- are -designated as ‘E. S. Co. 19,35.'’]
“We guarantee this entire order for twenty years.
“Warranty: Any article which is not exactly asi represented! may be r-etarn-ed- to us and we ¡will replace same With a new article without charge, regardiles-si of cost iof the article.”

The goods were shipped to defendant, but upon examination thereof hie claimed ¡they were hot as represented when he- placed tine .arder with .plaintiff's agent, and rdfusedl to aicoe.pt them, and after some correspondence -shipped them, back to -plaintiff. It appears from the evidence that the order was taken by a traveling salesman of the plaintiff clomp-any, anidl it also appears that the contract or order had been prepared ini -advance and that the transaction, from the beginning, was for the sale of all the articles therein 'enumerated in a single lot or -consign'ment.

Alt the trial, -the defendant testified that when plaintiff’s agent (icine Clifford) -Came to ihiisi place of business- he announced thlab he was selling Rogers Bros. 1847 bra-mdl of silverware; that in reply to a query h-y -defendant said Clifford fold! defendant that- the initial letters “E. S. Co.” where they appear in the contract ,(Stood: for Elliott Supply Company; that said order was for $180 worth of Rogers Bros. 1847 brand of silverware, and nothing else; that the articles' designated as E. -S'. Cb. were goods made especially for the Elliott Supply Company. Defendant further testified that • ¡he signedl the order ¡believing the entire shipment was to be Rogers Bros. ■ 1847 silverware, and' that he would' not have signed such order had 'it nlcit been for such belief. This testimony was objectedi to on the ground that it was incompetent and that it tends to vary and contradict the tennis of a written instrument. The purpose of this testimony was to show that the goods that were shipped! tei defendant were not wlhiat plaintiff’s agent represented! they would be, and on the strength of which -representation the order whs given, and- for that purpose it was competent. It does not in any way tend to vary the terms of the written order. The -order dotes not purport -to specify that -all the- articles enumerated therein, were silver-plated nor that they were all muanulfacbulred by Rogers Bros., amid', if it did, it would still 'be competent to show, by parol evidence, that -such articles -were not silver-plated, and -that they were not all manufactured by Rogers Bros. This testimony wias properly admitted. Careful con-skier ati-on h-a-s been given to all the other assignments, but no prejudicial! error appears.

The judgment and! order appealed from' are affirmed.

GATE'S, J., not sitting.  