Evidence, Extrinsic affecting writings. In an action for alleged breach of a contract in writing to employ the plaintiff as exclusive agent in a certain territory to sell "certain kinds of electric vehicles" manufactured by the defendant, it appeared that the plaintiff was to have a certain commission on vehicles and parts of vehicles sold by the defendant on orders procured by the plaintiff and that the defendant never sold anything on orders procured by the plaintiff. The plaintiff offered to prove that the "certain kinds of electric vehicles" mentioned in the contract were understood and agreed by the parties to be machines described in certain catalogues and circulars as of a certain speed and capacity. The judge excluded the evidence and ordered a verdict for the defendant. Held, that the exclusion was right, there being no ambiguity in the contract which did not contain the warranty sought to be imported into it by oral evidence.
LATHROP, J.
It seems to us very plain that the statement in the first "Whereas" of the contract that the defendant was the manufacturer "of certain kinds of electric vehicles" must be taken in connection with the second and third clauses of the contract, by the terms of which the defendant was to have the exclusive right to sell, within a certain territory, "all electric vehicles or parts or equipments thereof or accessories thereto, manufactured by the" defendant, and was to confine himself to the business of selling, within the territory named, "vehicles, parts, equipments or accessories thereof manufactured by the" defendant.
So construed, the ruling of the judge of the Superior Court excluding the offer of proof was right. There is no ambiguity as to the subject matter of the contract. By the sixth article of the contract the plaintiff was to receive "as full compensation for any and all services to be performed by him" a commission of twenty per cent of the purchase price of each of the defendant's vehicles or parts or equipment thereof sold by the defendant on orders secured by the plaintiff. It does not appear that the defendant sold anything upon orders procured by the plaintiff.
The purpose of the offer of proof was to introduce into the contract a warranty that its machines should possess certain qualities of speed, capacity and desirability. There is no warranty to be found in the contract, and a warranty cannot be imported into a contract by parol evidence. Lamb v. Crafts, 12 Met. 353. Frost v. Blanchard, 97 Mass. 155, 157. Kinnard Co. v. Cutter Tower Co. 159 Mass. 391.
Exceptions overruled.