The complaint is insufficient in averring a cause of action for false representations because there is no allegation that the defendant knew of the falsity of the representations. (Brackett v. Griswold, 112 N. Y. 467.) Excepting this omission, all the averments of an action in tort for deceit were alleged and there are no formal allegations of breach of warranty. Upon the trial, moreover, the plaintiff expressly disclaimed any intention of recovering upon the theory of deceit or false representations, and insisted that the action is one for breach of warranty.
Considering the action, however, from the standpoint of plaintiff’s own construction and in view of the evidence admitted, it still remains to be determined whether at the close of plaintiff’s case a dismissal of the complaint was justified. The defendant could have compelled the plaintiff to elect at the beginning of the trial whether he would stand on deceit or breach of warranty. The evidence, however, was received and it was only after the motion to dismiss was made that plaintiff elected to stand upon the breach of war*126ranty, and if there was sufficient to go to the jury upon that question, it was error to dismiss the complaint.
. 'Without repeating the various representations which plaintiff insists were in the nature of. warranties, it is sufficient to say that all were made prior in point of time to the execution of the written agreement of purchase and sale, and many were mere expressions of opinion and none survived the signing of the contract. As said in Vaughn Machine Co. v. Lighthouse (64 App. Div. 143): “That oral evidence is not admissible to vary the written engagement of the parties to it, where it is their entire agreement, is elementary,'but the exception is apparently as well established.that an independent collateral agreement, not contained in the writing, can be shown by parol.” Although it is entirely competent, therefore, where, the written agreement is not. complete and does not embody the entire understanding between the parties to prove an oral collateral agreement not inconsistent with the written, the rule does not go so far as to permit prior oral negotiations to be introduced in evidence for the purpose either of supplementing or contradicting the formal written contract.
Here it is not claimed that at the time the formal proposal to sell the machine was made and accepted, any other or different agreement than that embodied in the writing was made, all that appears being that before that time there had been some conversations between persons respectively repreéenting the plaintiff and defendant as to the character and advantages of the machine, and these it was insisted were collateral oral warranties. To regard these oral negotiations, prior in point of time, as collateral oral agreements which survived the written contract and were not merged therein, would be going further than any reported-decision. These.statements were not cotemporaneous, but were prior in point of time, and as they were not alluded to when the contract in writing was made, they were no part thereof and under the well-settled rules must be regarded as merged in the contract. The evidence moreover as bearing upon the intention of the parties shows that, after the preliminary negotiations were had wherein the alleged representations were made, the defendants stated that they would make a formal proposal in writing, which they , did, and this being accepted, must be regarded as embodying the contract of the parties.
*127The theory, therefore, of a parol collateral agreement has no basis upon which to rest. With respect,, however, to the written agreement there are two classes of warranty, one implied and the other express, which need to be briefly considered.
The purpose for which the engine. was required was fully understood between the parties, and in describing its component parts and its capacity there was necessarily included the implied warranty that it should be, when delivered, reasonably fit and suitable for the work -in hand. Such implied warranty would not survive acceptance. Here, however, the machine was to be placed in position on a foundation built for it according to plans furnished by the defendant, and then attached to a Bullock electric generator in order to run the motors. Before plaintiff, therefore, could be said to have accepted the engine, it was entitled to have an opportunity to observe its efficiency and a sufficient time to test it and determine whether it was reasonably fit for the purpose for which, as understood by the parties, it was intended. ' ,
It further appears that the machinery was put in position, and with the assistance of the defendant from time to time, for six or eight weeks, it continued to run the motors, but never with entire satisfaction, and it nowhere appears that there was an unconditional acceptance. The payment made at the end of that period was, as expressly testified, upon reliance that in' the respects in which the engine had shown itself to be deficient, it would be fixed and made all right by the defendant. And the defendant’s efforts to that end were continued, after the payment, down to the very time when the engine was destroyed as the result of an explosion. We think, therefore, upon the question as to whether or not there was an acceptance of the engine, and if there was not, whether there was a breach of the implied warranty, there was sufficient to require a submission of the case to the jury.
Apart, however, from this question of an implied warranty, we have in the contract. itself the express warranty that the engine should be equipped with a “suitable air starting device.” The words “ suitable air starting device ” necessarily involved the idea that a contrivance was to be provided that would start the engine; and yet we have an accumulation of evidence tending to show that it was difficult and at times impossible, even with the assistance of *128. the defendant’s own ■ men, to start the machine, although, when started it worked fairly well. Hence it would not have been a forced inference had the jury concluded that there was not furnished a “suitable air starting device.”
Regarding the complaint, therefore, as one for breach of warranty, there was sufficient evidence to go to the jury, and.it was error to dismiss the complaint.
The judgment, accordingly, should he reversed, .and a new trial • ordered, with costs to the appellant to abide the event.
Ingraham, McLaughlin and Hatch, JJ., concurred; Van Brunt, P. J., dissented.
Judgment reversed and new trial ordered, with costs to appellant to abide event. •