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Schlossman''s Inc. v. Niewinski

March 26, 1951


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.


[12 NJSuper Page 503] Plaintiff sold defendant three furniture slip covers for a price of $92.04, payable

in installments. The contract was in writing and contained no warranty of any kind. When defendant's wife washed the slip covers their various colors bled freely into one another, damaging them. Defendant promptly informed the plaintiff, by registered mail, that the slip covers were not washable as orally represented by plaintiff's salesman and demanded that adjustment be made or his money returned. Defendant had paid $31.04 on account of the purchase price. Plaintiff brought suit in the Passaic County District Court for the $61 balance. Defendant filed a counterclaim alleging that the contract had been rescinded because of the fraudulent misrepresentations of plaintiff's salesman that the slip covers were washable and sought a judgment for the return of the amount paid. Judgment was entered in defendant's favor on the counterclaim and plaintiff appeals.

Defendant and his wife were permitted to testify over the objection of plaintiff's attorney that before the signing of the agreement they discussed with plaintiff's salesman the question whether the slip covers would be washable, that they told the salesman they were persons of moderate financial circumstances and could not afford to have the slip covers dry cleaned, that the wife insisted on having slip covers which were washable and that "they received positive assurance from the salesman that the slip covers which they selected were washable," that, relying upon that representation, and induced thereby, defendant signed the agreement.

The salesman did not testify. The trial court accepted the testimony of defendant and his wife and found that the salesman had made "a positive representation" to the defendant that the slip covers were washable, that defendant had relied upon that representation and was induced thereby to enter into and execute the contract, that the representation made by the salesman was false and fraudulent in that "the slip covers, the subject matter of this contract, were not washable as represented."

It is insisted by counsel for appellant that the admission of the verbal representations enlarged and varied the written

contract. He therefore evokes the rule of evidence that when parties have put their contract into writing oral testimony cannot be substituted for or added to the written evidence of the agreement. Naumberg v. Young , 44 N.J.L. 331 (Sup. Ct. 1882). But this rule of evidence is not infringed by the admission of parol testimony which is not intended as a substitution for or an addition to a written contract, but which goes to show that the instrument is void or voidable, and that it never had any legal existence or binding force by reason of fraud. Duralith Corp. v. Van Houten , 113 N.J.L. 374 (E. & A. 1934); Timken Silent Automatic Corporation v. Vetrovec , 119 N.J.L. 500 (Sup. Ct. 1938); Cummings v. Cass , 52 N.J.L. 77 (Sup. Ct. 1889); Thompson v. Koewing , 79 N.J.L. 246 (Sup. Ct. 1910); Crosby v. Wells , 73 N.J.L. 790 (E. & A. 1907); Hanrahan v. National Building, Loan & Provident Association , 66 N.J.L. 80 (Sup. Ct. 1901); Annotation , 56 A.L.R. 13.

The case of Schlossman's, Inc. v. Radcliffe , 3 N.J. 430 (1950), urged on us by appellant as requiring a reversal here, was tried on a different theory and is not in point. The plaintiff here was also the plaintiff in that case and brought suit on a contract substantially identical with that involved here. The wife of the defendant purchaser in the Radcliffe case was permitted by the trial court to testify that during the negotiations for the slip covers she told the salesman she wanted washable slip covers and he assured her that the material was cotton gabardine and was a washable fabric, that after using the covers for several months she washed them and as a result of the washing they shrunk to an extraordinary degree, broke at the seams, and no longer fit the furniture. The admission of that testimony was held by the Supreme Court to be reversible error because the defendant offered it in support of an alleged oral warranty which was deemed by the court to have been intended as an addition to the written contract and not admissible within the settled rule that parol evidence of a warranty made prior to or contemporaneously with the contract "will not be admitted to add to or vary such a writing, nor will a

warranty be implied therein where, as here, the contract by its very terms is made the 'entire agreement' between the parties which 'cannot be changed orally'."

The testimony was not offered here as an addition to the written contract but to avoid the contract in toto on the ground of fraud. The distinction between such representations as add to the contract and such as avoid the contract, because of their fraudulent character, is firmly established. The admission of parol evidence for the purpose of avoiding a written contract on the ground of fraud is not confined to such testimony as goes to the execution of the contract, for example, to show that a party was lured into making a contract other than that intended, as by the substitution of one contract for another by trickery, or by misreading a contract to an illiterate person. The rule admitting parol evidence extends also to proof of fraudulent misrepresentations as to the subject matter of the contract. Cummings v. Cass, supra; Annotation , 56 A.L.R. , at p. 42. Nor, since fraud in the inducement is charged, is the testimony made inadmissible because the contract in suit includes a provision, "This is our entire agreement, and cannot be changed orally." Duralith Corp. v. Van Houten, supra; Series Publishers, Inc., v. Greene , 9 N.J. Super. 166 (App. Div. 1950).

We conclude, therefore, that if the evidence established fraudulent conduct on the part of plaintiff's salesman, the testimony was properly admitted There remains, however, the question whether that testimony was sufficient, in any aspect ...

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