Argument for Plaintiffs in Error.

I. Under the contract in this case defendants in error were bound to deliver articles that answered to the commercial description "turpentine copal varnish" and "turpentine japan dryer." Nichol v. Godts, 10 Exch. 191; Josling v. Kingsford, 13 C. B. (N. S.) 447; White v. Miller, 71 N. Y. 118; Hawkins v. Pemberton, 51 N. Y. 198; Henshaw v. Robins, 9 Met. 83; S. C. 43 Am. Dec. 367.

II. The whole controversy in the case at bar centred around the question whether the goods that defendants in error delivered to plaintiffs in error were or were not "turpentine" goods.

III. It was error in the court to refuse to charge the jury as asked for in the request recited in the first assignment of error, to wit, that the evidence showed without contradiction that goods compounded of an equal quantity of turpentine and benzine are commercially designated and known in trade as "turpentine and benzine," or "union" goods; and the court also erred in the same direction in stating that Mr. Wood testified that an article of which the liquid portion is half turpentine and half benzine is commercially known as "turpentine japan," as stated in the second assignment of error. See Parks v. Ross, 11 How. 362; Toland v. Sprague, 12 Pet. 300; Schuchardt v. Allens, 1 Wall. 359; Merchants' Bank v. State Bank, 10 Wall. 604, 665; Marion County v. Clark, 94 U. S. 278.

IV. The court erred in refusing to allow plaintiffs in error to introduce evidence tending to show that the article which was the subject of the controversy in this case was not a merchantable article, as indicated in the fourth assignment of error, and also in refusing to charge, as requested by plaintiffs in their sixth, seventh and eighth requests, that in order to comply with their contract, defendants in error must have delivered to plaintiffs in error a fairly merchantable and salable article of turpentine japan and turpentine varnish, as indicated in the fifth, sixth and seventh assignments of error. Mody v. Gregson, L. R. 4 Ex. 49; Hoe v. Sanborn, 21 N. Y. 552; S. C. 78 Am. Dec. 163; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116; MacFarland v. Taylor, L. R. 1 Scotch App. 245.

V. The court erred in refusing to allow plaintiffs in error

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to prove the difference in value between their cloth as painted with the Berry Brothers' material and the same cloth painted with a fair article of turpentine japan and turpentine varnish, as indicated in the eighth, ninth, tenth and eleventh assignments of error. Dushane v. Benedict, 120 U. S. 630, 636; Dart v. Laimbeer, 107 N. Y. 664; White v. Miller, 71 N. Y. 118; Passinger v. Thorburn, 34 N. Y. 634; S. C. 90 Am. Dec. 753; Milburn v. Belloni, 39 N. Y. 53; S. C. 100 Am. Dec. 403; Flich v. Wetherbee, 20 Wisconsin, 392; Masterton v. The Mayor, 7 Hill, 61; S. C. 42 Am. Dec. 38; Griffin v. Colver, 16 N. Y. 489; S. C. 69 Am. Dec. 718; Messmore v. New York Shot Co., 40 N. Y. 422; Wakeman v. Wheeler & Wilson Mfg Co., 101 N. Y. 205.

Mr. John E. Parsons, for defendants in error, cited: Northwestern Ins. Co. v. Muskegon Bank, 122 U. S. 501; Sands v. Taylor, 5 Johns. 395; S. C. 4 Am. Dec. 374; Beck v. Sheldon, 45 N. Y. 365; Parkinson v. Lee, 2 East, 314; Jones v. Just, L. R. 3 Q. B. 197; Chanter v. Hopkins, 4 M. & W. 398; Mumford v. McPherson, 1 Johns. 414; Fox v. Hazelton, 10 Pick. 275; Gale v. New York Central Railroad, 13 Hun, 1.

MR. JUSTICE LAMAR delivered the opinion of the court.

It is not necessary to examine the sixteen assignments of error in detail. When analyzed they are resolved into one or other of these three propositions:

(1) That under a contract for the future delivery of goods, such as was made in this case, and by the terms of this agreement, it was still necessary that the goods delivered should conform to a common commercial standard, and should be adapted to the known uses of the vendee, notwithstanding the express terms of the written contract.

(2) That the court erred in refusing to treat the previous contract between Berry Brothers and the De Witt Wire Cloth Company as a part of the contract in controversy, by reference.

(3) That the court erred in excluding the antecedent parol colloquium offered as a part of the contract, or as competent to explain and interpret it.

We will consider these general propositions in the order

Opinion of the Court.

stated. First. The contract between the parties was in writing and contained an express warranty as to the quality. It says: "These goods [are] to be exactly the same quality as we make for the De Witt Wire Cloth Company of New York, and as per sample bbls. delivered." Now there is good authority for the proposition that if the contract of sale is in writing and contains no warranty, parol evidence is not admissible to add a warranty. Van Ostrand v. Reed, 1 Wend. 424; Lamb v. Crafts, 12 Met. 350, 353; Dean v. Mason, 4 Connecticut, 428, 432; Reed v. Wood, 9 Vermont, 285; 1 Parsons on Cont. (6th edition) 589.

If it be true that the failure of a vendee to exact a warranty when he takes a written contract precludes him from showing a warranty by parol, a multo fortiori when his written contract contains a warranty on the identical question, and one in its terms inconsistent with the one claimed.

In the case of The Reeside, 2 Sumner, 567, Mr. Justice Story said: "I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori not in order to contradict them. An express contract of the parties is always admissible to supersede, or vary or control a usage or custom ; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts; but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties." The principle is, that, while parol evidence is sometimes admissible to explain such terms in the contract as are doubtful, it is not admissible to contradict what is plain, or to add new terms. Thus, where a certain written contract was for "prime singed bacon," evidence offered to prove that by the usage of the trade a certain latitude of deterioration called "average taint" was allowed to subsist before the bacon ceased to answer that description, was

Opinion of the Court.

held to be inadmissible. 1 Greenleaf on Evidence, § 292. note 3; Yates v. Pym, 6 Taunt. 446; Barnard v. Kellogg, 10 Wall. 383; Bliven v. New England Screw Company, 23 How. 420; Oelricks v. Ford, 23 How. 49.

There are numerous well considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable or fit for their intended use. International Pavement Co. v. Smith, 17 Missouri App. 264; Johnson v. Latimer, 71 Georgia, 470; Cosgrove v. Bennett, 32 Minnesota, 371; Shepherd v. Gilroy, 46 Iowa, 193; McGraw v. Fletcher, 35 Michigan, 104.

Nor is there any conflict between these authorities and others like them on the one hand, and those on the other, which hold that goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable, or as suited to the known purpose of the buyer. Dushane v. Benedict, 120 U. S. 630, 636, and cases there cited. It is the existence of the express warranty, or its absence, which determines the question. In the case at bar there was such an express warranty of quality in terms. Not only that, but there was a sample delivered and accepted, as such. The law is well settled, that, under such circumstances, implied warranties do not exist. Mumford v. McPherson, 1 Johns. 414; Sands v. Taylor, 5 Johns. 395; Beck v. Sheldon, 48 N. Y. 365; Parkinson v. Lee, 2 East, 314. In Jones v. Just, L. R. 3 Q. B. 197, 202, quoted by Mr. Benjamin in his work on Sales, § 657, Mellor, J., delivering the opinion of the court, laid down among others the following rule: "Where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known defined and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288.”

Examining now the express terms of the contract, in order to see what they are, and whether they fairly import the warranty claimed by the plaintiffs in error, we find them to be as follows:

Opinion of the Court.

"These goods to be exactly the same quality as we make for the De Witt Wire Cloth Company of New York, and as per sample bbls. delivered. Turpentine copal varnish at 65 cts. per gallon; turpentine japan dryer at 55 cts. per gallon."

There are here three items of description claimed by the plaintiffs in error: (1) That they should be the same as those made for the De Witt Wire Cloth Company; and there is no evidence whatever that they were not the same, nor is a difference in this respect any part of their claim. (2) That they should conform to a sample delivered; and here again is an entire absence of testimony to show any difference, and a want of any such claim by the plaintiffs in error. The whole question, therefore, as to this branch of the case, turns upon the effect of the use of the expressions "Turpentine copal varnish, at 65 cts. per gallon, turpentine japan dryer, at 55 cts. per gallon." The plaintiffs in error maintain that the defendants in error thereby engaged to deliver articles known to the trade by those names, and of a certain standard of quality. We do not so construe the writing. All the terms descriptive of the quality are found in the sentence preceding. These sentences are nothing but stipulations in respect to the prices to be paid, and were not intended to fix quality.

There is this further to be said. We have carefully examined the record in this case, and are impressed with a conviction that, whatever the fact may be, the evidence adduced fails to show any such general usage of trade in respect to the standard of these preparations, or in respect to their designations, as is claimed by the plaintiffs in error. Their position is, that the words " turpentine copal varnish," etc., if considered at all as a stipulation as to quality, would mean a varnish in which the liquid elements were to be so composed that at least 50 per cent of them should be turpentine. In Carter v. Crick, 4 II. & N. 412, 417, Pollock, C. B., observed that "if a party seeks to make out that certain words used in a contract have a different acceptation from their ordinary sense, either for the purposes of trade, or within a certain market, or in a particular country, he must prove it; not by calling witnesses, some of whom will say it is one way and some the other, and then