Oldfield v. International Motor Co.

Thomas, J., delivered the opinion of the court. This is the second appeal in this case. The first appeal was from a judgment in favor of the plaintiff, and the judgment was reversed by this Court for errors in the prayers fixing the measure of damages. This appeal is from a judgment in favor of the defendant, and brings up for review the action of the court below on the prayers construing; the con ³⁶ tract between tbe plaintiff and defendant, and its rulings on tbe evidence! embraced in two bills of exception.

In 1914 and 1915 the defendant company was engaged in the manufacture and sale of motor trucks of diffeomt makes and sizes, and maintained a factory at Plainfield, New Jersey, where it built the chassis, and a plant in New York, where the bodies of the trucks were constructed and placed on the chassis. In the fall of 1914 the plaintiff was contemplating starting a truck line for the transportation of miscellaneous freight between Baltimore and Havre de Grace, over the state road then under construction, and with that end in view he got into> communication with Mr. Charles T. Cronin, who represented the defendant in Baltimore, and who gave the plaintiff one of the defendant’s catalogp.es, containing “general, mechanical specifications” of the chassis manufactux-ed by it, and also “gave- him a demonstration of what” a 6% ton Saurer “truck could do.” The road between Havre de Gx’ace and Baltimore was completed in the spring of 1915, and in June the plaintiff went to see Mr. Cronin again, and Mx*. Cronin took him to the defendant’s factory ixx Plainfield and fx’om there to its plant in New Yoxh, whex*e he met Mr. Fetzer, head of the defendant’s sales department, and Mr. Fulton, vice-president of the defendaxxt. The plaintiff states that he explained to them that he wanted a truck of “five ton capacity,” and the purpose fox* which he wanted it, and that they x’ecommended a 'Saurer truck, with a llL/s-inch wheel base, and a body like one they showed him and which they were building for axxother maxx to haul green groeexfies in.

Mr. Cronin, a witness for the defendant, testified that when he took the plaintiff to Plaixxfield and New York he tried to ixxterest him ixx a Mack trxxck, that “the Saxxrer truck xxsed approximately 66 2/3 per cent, of the amount of gasoline that the Mack truck used axxd weighed 5,900 pouxxds, while the weight of the Mack was 8500” pounds, and that the plaintiff thought that the Mack truck was too heavy and would require too much gasoline and oil. The plaintiff further testified that shortly after that visit he had an occasion to go t» New ³⁷ York and went to the defendant’s factory again to see the gentlemen he had met there, that the body that they had previously recommended had then been completed and was on the chassis, that he told them he thought it would bei satisfactory, except that it was open in front, that they suggested that they could make a glass front, and insisted on getting up a sketch, which they did while he was there, and later mailed him a- blue print of it, tbat in talking to Mr. Fetzer and bis assistant about tbe body, be asked them particularly about the weight of the body, and they told him they could not tell him positively about that, hut that he could speak to Mr. Callahan, who was getting up the sketch of the body, and who could give him “positive information” as to what the body would weigh; tbat be then talked to Mr. Oallahan, and tbat he said to the plaintiff, “Mr. Oldfield, it will weigh not less than 1250 pounds and not more than 1500 pounds. You can depend on that”; that it was in that connection they told him they would send him a blue print of tbe body, which they did, and on the 28th of June, 1915, the Monday or Tuesday following the receipt of the blue print, be went to Baltimore to see Mr. Bulon, the defendant’s representative there, who had a copy of the Hue print and a contract of purchase already signed by the defendant company; that he agreed to purchase the truck on the terms set out in the contract, which he then signed, and the truck was delivered to and paid for by him on the 16th of August, 1915. The contract, which, with the blue print, was offered in evidence, is as follows : “International Motor Company, “General Offices, “Broadway and Fifty-seventh Street, “Original.

Yew York. 6363 “Proposal. “Baltimore, Md., June 28, 1915. “To John F. Oldfield, “(Hereinafter called the Purchaser), “Belair, Harford County, Maryland. “The International Motor Company (hereinafter called the Company) proposes to sell purchaser One ³⁸ (1) Saurer chassis with Maximum Guaranteed Live Load Capacity of Ten thousand (10,000) Pounds with' regular equipment in accordance with Standard specifications, which are to he considered part of this contract when accepted by the Purchaser (complete with body as specified herein). “Delivery as follows: Truck to be shipped from the Company’s shops on or about August 1st, 1915 ( ) days after acceptance of order and receipt of final detailed information, at the prices affixed, viz: “Chassis — Type Fo. 1, capacity 10,000 Pounds; maximum length of Body to be used, Wheel Base, ' feet 11'E'g inches.............................. $4,800.00 “Tires — Front, 36x5 Single Goodrich Demountable; Rear, 42x6 Dual. “Body Style — As per blue print Fo. 5969. 450.00 “Paint Chassis — As per sample. “Paint Body, — As per sample. $5,250.00 “Lettering — (Sketch must accompany order.) “Extra Equipment — Towing eye-bolt to be installed as per sketch. “Less special allowance................ 1,040.00 “Total........................'......$4,210.00 “Delivered f. o. b. cars at factory. “Terms of Payment (all payments must be made to the order of the Company in New York funds) — -Cash on delivery. “Shipping Instructions — Over the road ($30), Fo More. “Guarantee — The Company guarantees all parts of cars and trucks against defective material and workmanship for a period of one year from date of shipment to the extent that they will furnish free of charge f. o. b. Factory new parts in exchange for defective ³⁹ parts, provided said defective parts are returned to the factory, charges prepaid. This guarantee does not apply to chains, tires, electrical equipment, or other accessories not manufactured by the Company, nor to damages or breakages resulting from wear and tear, accident or misuse. No guarantee express or implied other than herein stated is made by the Company. “Title and Ownership — The title and ownership of the Motor Vehicles, parts and accessories called for and furnished under the terms of this contract shall remain in the Company until the full and final payment of the cash therefor shall have been made by the Purchaser.

In case of default in any of the payments above provided for, the Company may repossess itself of the above mentioned Motor Vehicles, parts and accessories wherever found, and shall not be liable in any action at law on the part of said Purchaser for such reclamation of its property, nor for the payment of any money or moneys which may have been paid by said Purchaser in part payment of said shipment. The Company shall not he held responsible or liable for any loss, damage, detention or delay caused by fire, strike, accident or by any other cause which is unavoidable or beyond its reasonable control, or in any event for consequential damages, and the receipt of the apparatus by the Purchaser upon its delivery shall constitute a waiver of all claims for loss or damage due to delay. All previous communications between the parties hereto, either verbal or written, with reference to the subject-matter of the proposal are hereby abrogated, and the proposal duly accepted by the Purchaser and approved by an Executive 'Officer of the Company at New York City, constitute the agreement between the parties hereto, and no modifications of this agreement shall be binding upon either party unless such modifications shall be in writing, and duly accepted and agreed to by the Purchaser, and approved hv an Executive Officer of the Company. This proposal is for immediate acceptance by the Purchaser, ⁴⁰ and must be approved by an Executive Officer of the Company in order to make it binding upon the Company. “International Motor Company, By “Charles T. Cronin (Salesman). “Acceptance. “The foregoing is hereby accepted at the price and upon the terms and conditions named herein. “Dated June 28, 1915. “John E. Oldfield. “This contract is approved and receipt of, ($ ) Dollars is hereby acknowledged. “New York, NT.

Y., June 30, 1915. “International Motor Company, “By R. W. Eulton (Vice-President).” The plaintiff alsoi offered in evidence the catalogue issued by the company and given to him, and the record containsi the following clauses taken therefrom, under the heading “Sa.urer five ton, general, mechanical specifications”: “Capacity — Normal carrying capacity inclusive of body, 11,500 pounds. “Weight — Weight of chassis with tires and driver’s seat, but without body, 5,990 pounds. “Speeds — Eour speeds forward and one reverse, giving at 1,000 r. p. m. of motor 3.13, 6.25, 8.33 and 1.25 miles per hour, respectively, and 3.13 miles per hour on the reverse, with sprockets 13.38. “Motor — The Saurer motor is of the four cylinder, etc. “Transmission — The gears are of the selective type, etc. “Differential — The differential is of the four pinion type, etc. “Driving Shaft — The driving shaft is of chrome nickel steel, etc. “Clutch — The clutch is of the cone type, etc. “Axles — The axles are of manganese steel, etc. “Wheels- — -The wheels are of wood artillery type,