Opinion
No. 29338.
May 12, 1931. Suggestion of Error Overruled, June 1, 1931.
1. EVIDENCE. Verbal agreements are inadmissible to vary written sales contract which provides that no agent may add to or waive provisions.
Where a contract provides that no agent of seller has authority to alter, add to, or waive any warranty or statement contained in the contract, and that all the terms of the contract are embraced therein, and the contract is subject to the acceptance of the company at his home office and is accepted by the company at its home office without knowledge on the part of its accepting officer of verbal agreement, no verbal agreements are admissible in evidence to vary the terms of the contract.
2. EVIDENCE. Seller under written contract merely providing for delivery of gasoline engine held not bound by agent's statement that extension of vent pipe was unnecessary.
Although an agent of the seller, whose authority was limited to soliciting orders for his principal upon written contract to be accepted by the company at his home office, and which contract provides that it contains all of the agreements, makes statement that the extension of the vent pipe to the outer part of the building is unnecessary, such statement is not binding upon the company, and the company is not responsible for injuries resulting from failure to extend the pipe, where its contract merely provides for the delivery of the machinery at the building and not for its installation by the company.
APPEAL from circuit court of Hinds county, First district; HON.W.H. PORTER, Judge.
Ross R. Barnett and E.L. Shelton, both of Jackson, for appellant.
It was a question solely for the jury as to whether the Jackson International Company, through its duly authorized agent, undertook to and did negligently install the engine and grist mill, in that they failed to connect an exhaust pipe from the engine to the outside of the building.
Under the pleading in the case at bar the court should have excluded the written order or contract when offered in evidence by the appellee as this was affirmative matter.
Section 536 of Code of 1930; Yazoo Mississippi Valley Railroad Company v. Grant, 86 Miss. 565, 38 So. 502.
The warranty to put machinery in order means, that the seller will do all those things that are necessary in order that the machinery may be operated in a satisfactory, safe and proper manner, and, if necessary, install the machine, or, if it has been installed, and improperly installed, to reinstall said machine in the proper manner, and in a safe manner.
The word "install" means to set up or fix in position for use or service.
Metzler v. Thye, 124 P. 721, 163 Cal. 95.
May, Sanders, McLaurin Byrd, of Jackson, for appellees.
The defendant here did not owe any greater duty to the plaintiff than the master owes to the servant to warn him of any danger. It is elementary law that employees assume the obvious risk incident to their employment, and some of the courts go to the extent of holding that this assumption of risk is a part of the contract.
Y. M.V.R.R. Co. v. Hullum, 119 Miss. 229, 80 So. 645; King v. Morgan, 48 C.C.A. 507; North Ala., etc., Co. v. Beacham, 37 So. 227; Peterson v. New Pittsburg Co., 63 Am. St. Rep. 289.
Appellee installed just exactly what appellant bought and just exactly what it, appellee, bought from the manufacturer. The mill outfit complete was furnished him and installed for him. The action of the lower court in directing a verdict for the defendant was correct.
Speir was plaintiff in the court below, and filed a suit for damages for the improper installation of a gasoline engine in a building owned by Speir. The gist of the complaint is that a vent pipe should have been extended outside of the building in which the gasoline engine was placed, and that the International Company had contracted to install the machinery in a proper, safe, and workmanlike manner.
The contract of purchase upon which the action is founded, among other things, had a clause in which it was recited that the purchaser retained a copy of the contract, which, together with the warranty agreement on the back thereof, is understood to be the entire contract, and the contract was subject to acceptance by the dealer to whom the order was addressed. The order was taken by one R.F. Clenney, and was accepted for the company by J.G. Coleman. Among the provisions on the back of the contract referred to is a provision that "no agent of the seller has authority to alter, add to, or waive the above warranties which are agreed to be the only warranties given, and in lieu of all implied warranties." The contract did not call for the installation of the engine in the building, but merely for its delivery. It appears that one of the representatives of the company, after the engine was delivered in the building, came in the building on the Monday following the delivery and made statements to the effect that it was not necessary for the vent pipe to be extended to the outside of the building.
After the engine was set up, Mr. Speir was operating it and was overcome by fumes of monoxide gas, from which he suffered illness and contracted physician's bills. There was no proof that the party who made the representation with reference to the safety of the operation without the vent pipe extending outside the building was authorized by the company to either install the machinery or to make any representations on its behalf. The proof on behalf of the company is to the effect that he had no such authority, and there is nothing from which we can infer the evidence was false.
There was a peremptory instruction for the Jackson International Company in the court below, from which this appeal is prosecuted. A careful consideration of the contract in the record shows that the only obligation of the company was to deliver the machinery at the place where it was delivered. It expressly stipulated in the contract that the contract contained all the terms of contract, and that no agent had any authority to make verbal representations not contained in the contract. The contract was not effective until it was accepted by the company at its office through its proper agent. In other words, the selling agent had no authority to make representations or agreements not contained in the contract on behalf of the company. We have repeatedly held that it is competent for a company in conducting its business to limit the authority of its agents to forwarding the contract for acceptance by the company through its proper agents and officers, and to insert such provisions as are referred to in this opinion in their contracts, and that such contracts are valid. We are therefore of the opinion that the learned court below was correct in giving the peremptory instruction for the defendant.
Affirmed.