There are ten assignments of error in the petition in error, but these are all grouped and discussed under two propositions in the briefs. The first of these propositions reads:
"First. The merchandise having been purchased by the defendant and delivered by the plaintiff under a written order, which was clear, unambiguous and certain parol evidence was inadmissible to contradict, vary, or add to the terms of such written contract.
"Second. Since the written contract of purchase contained no warranty as to the quality of the the goods sold, parol evidence was not admissible to how a contemporaneous verbal guarantee that the roof cement would stop the leaks in defendant's building."
It appears from the record that in February, 1918, one Mayhew visited the defendant's office in Chickasha representing the National Supply Company, and sold to the defendant a bill of merchandise which this action is based. The National Supply Company manufactures and sells through traveling representatives certain roofing materials. At the time of Mayhew's visit defendant had a leaky roof, and Mayhew represented to defendant that the roof cement put out by his company would stop these leaks if applied according to directions. The roof of defendant was a tin roof. During the conversation Mayhew gave to the defendant a certain pamphlet advertising a certain roofing material also manufactured and sold by the National Supply Company. It is claimed by defendant that this pamphlet became a part of the original contract of purchase, and constituted a written guarantee of the things which Mayhew claimed for the roofing cement. The written order signed by defendant at the time of this transaction described the merchandise purchased thus:
"7 barrels Roof Cement at 8c per lb."
The pamphlet, which defendant claimed to constitute a written guarantee of the quality of this roof cement which was sold to him to apply on his tin roof, contains the following language in its heading:
"Trade NSCO Mark
"Rubber Roof Coating for rubber composition, canvas, paper, gravel and prepared roofs. Manufactured only by National Supply Co., Birmingham, Ala."
In the body of the pamphlet in the third paragraph thereof, occurs this language:
"NSCO Rubber Roof Coating is especially adapted for use on rubber composition, canvas, paper, gravel and other prepared roofs of all kinds as it readily penetrates the body upon which it is applied, renewing its life and restoring it to its natural condition. Fills the small holes and cracks, cementing the surface, making the roof tight and renders the body water and weather proof."
The last paragraph of the pamphlet gives directions for applying this particular product in this, language:
"Before applying NSCO Rubber Roof Coating the surface on which it is to be applied should be thoroughly cleaned and the coating should be applied 3 with a three or four knot brush."
John Stein, superintendent of defandant's plant, testified in substance that he was present when Mayhew sold his roofing cement to the defendant, and that he went up on the roof with Mayhew and Mr. Wright, who was secretary of the defendant company. His purpose in going upon the roof was that Mayhew might instruct him as to the manner of applying the roof cement as he, Stein, would be the one who would direct the repairing of the roof when the cement arrived. In reference to Mayhew's instructions he testified as follows:
"He went up on the roof with us — it was a seam roof, or metal roof, seamed ridges to it — told us to hammer these ridges down and spread this cement on it, take a board. I don't remember just what length now, but *Page 109 to put some blocks to hold it up something like a fourth of an inch off the iron, and to push this back and forth over it to level it down."
He further stated that the cement was thereafter applied according to these directions. This is the character of testimony relied upon by defendant to establish the written guarantee which it claimed constituted a defense to plaintiffs action, and it shows how utterly unreasonable and untenable such claim is. Defendant was directed by Mayhew to apply the roofing cement which he had purchased by leveling it with a board on the surface of the tin roof. As constituting a written guarantee of the quality of this roofing cement defendant relies upon the printed pamphlet describing Rubber Roof Coating, which is a liquid to be applied with a three or four knot brush and is sold and recommended for use only on rubber composition, canvas, paper, gravel, and prepared roofs. To the introduction of this pamphlet as evidence to establish the written guarantee claimed by defendant, plaintiff objected, but the same was admitted over its objection and exception. This action of the trial court in admitting this printed pamphlet describing Rubber Roof Coating was clearly erroneous and prejudicial to the substantial rights of the plaintiff.
The written order for the 7 barrels of roof cement which was signed by the defendant is clear and unambiguous, and expressly states what plaintiff sold and what defendant purchased. It is, therefore, clear that with this written contract introduced in evidence it was prejudicially erroneous for the trial court to admit oral testimony of statements and representations made by Mayhew to the defendant to induce the purchase of the merchandise. The written contract between the parties could not be thus varied and new meaning and different effect be given to it by the recollection of witnesses as to what Mayhew said in boosting the sale. This is elementary and does not require a citation of authorities.
It is, therefore, concluded upon the whole case that the trial court erred in overruling the motion of plaintiff for a directed verdict in this action. The judgment of the trial court should, therefore, be reversed, with directions to vacate its judgment herein and to grant plaintiff a new trial in the action, and for further proceedings in conformity with the views herein expressed.
By the Court: It is so ordered.
Note. — See under (1) 35 Cyc. pp. 442, 460.