On appeal from the Hudson County District Court, Part 5.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.
Judgment in this case was entered in the Hudson County District Court, Part 5, on June 15, 1949, in favor of the defendant and against the plaintiff both on the main case and on defendant's counterclaim, and plaintiff's appeal therefrom to the Appellate Division of the Superior Court has been certified here on our motion.
Defendant, acting through his wife, engaged the plaintiff, an upholsterer, to make slip covers for certain pieces of defendant's furniture at a lump sum price which included material and labor. Plaintiff based its action on a written instrument which it claimed embraced all of the terms of the foregoing transaction and, asserting performance, sought recovery of the unpaid balance of the price alleged to be due thereunder. The counterclaim averred that plaintiff had agreed to make the covers in a workmanlike manner and of first-class material, but they were made in such an unworkmanlike manner and of such inferior material that in a short
time they shrank, broke at the seams and did not properly fit the furniture.
The dispositive question presented by this appeal is whether or not the trial court erred in admitting parol evidence of an express warranty that the material selected for the covers was a washable fabric.
Plaintiff produced the writing in question and it was marked in evidence. It consists of a single sheet of paper. One side thereof entitled "Statement of Transaction" bears the date June tenth, and recites, inter alia, the names of the parties, the pattern and color of the material to be used in the fabrication of the covers, the pieces of furniture to be covered, the price, the credits and the balance due with provision for its payment in monthly installments. There are no signatures on this side of the paper. The reverse side is designated "Chattel Mortgage" and immediately below this descriptive title the following statement appears:
"Details appearing on the reverse side and in attached sales or service tickets are part of this contract. They indicate the materials furnished and the services to be performed by Schlossmans Inc. * * *, together with the credit service charge and all taxes due under this contract.
"* * * the Purchaser has this day engaged the Seller to reupholster the items of furniture indicated on the reverse side hereof and further to furnish the necessary material and equipment incidental thereto, * * *."
Then appear the further provisions for securing the payment of the balance of the purchase price by mortgaging the furniture to be re-covered. Below this, on the same side of the instrument, the following statement appears: "THIS IS OUR ENTIRE AGREEMENT, and cannot be changed orally," followed by the signatures of the defendant and his wife who negotiated the transaction with the plaintiff and executed the instrument in defendant's behalf and with his consent. It should also be noted that nowhere, on either side of this paper, is there any mention of a warranty of any kind.
Only one witness was produced at the trial, the wife of the defendant. When testifying as ...