ON RRHRARING.
Opinion delivered July 15, 1907.
McCuuroch, J.Our attention is called, on the petition for rehearing, to the fact that appellant failed to approximately raise below the question of appellee’s right to counterclaim against the cause of action set forth in the complaint. On examination of the record we find this to be true.
The conclusion which we reached on that question on the former hearing lead to a reversal, and we failed, on that account, to consider other questions presented. It becomes necessary now for us to do so.
The original contract between the parties, whereby appellant agreed to furnish to appellee the elevator machinery, was completé in itself, and ^contained a description of each item of machinery to be furnished. The specifications attached to the contract mentioned the number and sizes of the articles to be furnished, but made no mention of the capacity of the machinery, except as to one item, viz., the hopper to the scales. Appellee was allowed, over appellant’s objection, to give testimony in his own behalf tending to establish a verbal warranty as to the capacity of the elevator, or representations from which a warranty would be implied. This was incompetent. “Antecedent propositions, correspondence, prior writings, as well as oral statements and representations, are deemed to be merged into the written contract which concerns the subject matter of such antecedent negotiations when it is free of ambiguity and complete.” Lower v. Hickman, 80 Ark. 505; Johnson v. Hughes, ante p. 105; Suitz v. Brenner Refining Co., 141 U. S. 510. The contract between the parties was complete and entirely free from ambiguity, and it was not contended that any false or fraudulent representations were made to procure its execution. The testimony in question did not tend to establish a false and fraudulent misrepresentation, and it was incompetent to engraft a warranty upon the written contract or to supplement the written contract with an oral warranty.
Error of the court is also assigned in allowing appellee to testify concerning the capacity of the hopper to the scales, that it was necessary to hire an extra hand on account of the lack of full capacity of the hopper, and to make the following statement: “I claim $85 difference. I wouldn’t have had the scales in . the manner they were put up.” The measure of damage was not the difference in cost of operating the machinery on account of the incapacity of the scales, but it was the difference between the cost of the hopper to- be furnished according to contract and the one actually furnished, or, if the one furnished was not fit for practical use with the other machinery, the cost of procuring another hopper of the capacity stated in the contract.
These errors call for a reversal of the judgment, so the petition for rehearing is denied.