Opinion
June 19, 1924.
Haight, Smith, Griffin Deming ( Frank A. Paul and E.R. Kraetzer, of counsel), for the plaintiff, respondent.
Kellogg, Emery, Inness-Brown Cuthell ( Dean Emery and J. Fearon Brown, of counsel), for the appellant.
This action was brought to recover the contract price of certain coal delivered to the defendant under a written agreement.
Evidence offered by defendant to prove an express warranty was properly excluded, but the court also struck out evidence by defendant's witness of a conversation with plaintiff's representative to the effect, in substance, that he explained the particular and peculiar use for which defendant needed the coal and that the plaintiff assured him that the coal which it proposed to furnish and which was provided for in the agreement subsequently signed would meet defendant's needs, and denied defendant's request to go to the jury on the existence of an implied warranty, which was pleaded as a third separate defense and counterclaim.
The weight of authority seems to us to be overwhelmingly in favor of permitting all the circumstances of the transaction to be proved by parol evidence, even in the case of a written contract of sale, in order to enable the triers of the facts to determine whether an implied warranty existed pursuant to the terms of section 96 of the Personal Property Law. Gillespie Brothers Co. v. Cheney, Eggar Co., L.R. (1896) 2 Q.B. 59; Sampson v. Pels Co., 199 A.D. 854; The Steamship S. Angelo Toso, 271 F. 245 (C.C.A. Third Circuit, 1921); Thomson v. Meyercord Co., Inc., 174 N.Y.S. 732; Williston Sales (1909), § 215.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
All concur; present, BIJUR, MULLAN and LEVY, JJ.
Judgment reversed and new trial ordered.