(dissenting). Plaintiff entered into a written contract with defendants, by the terms of which plaintiff agreed to furnish defendants with everything requisite to the putting- in of one of its patent 20x40 refrigerators, and defendants agreed to pay the sum of $475 upon completion thereof. Plaintiff claims performance, and sues to recover the contract price.
The writing contains no representations or warranty as to utility, and defendants insisted upon the trial that the refrigerator entirely failed to perform the services which plaintiff, before the contract was entered into, represented that it would perform; that defendants were dealers in meats, and so informed plaintiff; that they also informed plaintiff that they desired cold storage for a number of beeves in the summer season; that plaintiff represented that its system would preserve fresh meats from 30 to 50 days, or for most any length of time desired; that the refrigerator was placed in a room and operated strictly in accordance with plaintiff’s directions; that after its completion a number of trials were made, but the meats became putrid within a period of five or six days.
*277Plaintiff requested the court to instruct the jury as follows: •
“The contract in this case is in writing, and I instruct you that any conversation had between the parties that tends to controvert or vary the terms of such agreement before the signing of the contract is not admissible evidence. You should not consider any such conversation in this case.”
The court refused so to charge, but, instead, instructed them that, if plaintiff represented to defendants that the refrigerator would keep meat from 30 to 50 days, such representations would amount to a warranty. The court .also instructed the jury as follows:
“Upon this question of warranty, * * * if you find from the evidence that the plaintiff knew that the defendants were butchers, and the plaintiff agreed by this contract to construct for them a cold storage to be used by them in their business,' then the law raises an implied warranty that the cold storage was reasonably fit for the purpose for which it was constructed; in this case, the purpose being to preserve meat. And if you find that the cold storage constructed by the plaintiff for the defendants was not reasonably fit for the purpose for which plaintiff knew defendants designed to use it, then plaintiff cannot recover.
“And, further, * * * if you find from the evidence that defendants purchased the cold-storage system for a particular purpose, made known to the plaintiff at the time of the purchase, and that defendants relied on the judgment and knowledge of the officer of the plaintiff, and not on their own, then there is an implied warranty that the system furnished should be reasonably fit and suitable for that particular purpose; and this is more obvious and true when the plaintiff was the manufacturer as well as the seller.”
The principal question in the case arises upon this refusal, these instructions, and the admission of the testimony to which the instructions relate.
There are authorities which go so far as to hold that whenever, upon the purchase or sale of an article, a bill of sale or sale note, or even a bill of parcels, is given,. *278such bill or sale note or bill of parcels is tbe evidence of the contract, and that parol evidence of a warranty or of representations operating as an inducement to the purchaser will not be admitted. In some of these cases the writing described and defined an article known to trade circles, and it was sought to show by parol that an article of a specific quality was contracted for. The “ Tallow Case” is an illustration. Lamb v. Crafts, 12 Metc. 353. In others a certain specified article had been named, as in Mumford v. McPherson, 1 Johns. 414, where it was sought to show that the “ship” was represented to be “completely copper-fastened.” In others the actions were in assumpsit upon an alleged warranty resting in parol, and it has been held- that the remedy was in tort for the deceit. Wilson v. Marsh, 1 Johns. 503.
This Court has, however, in a number of cases, refused to follow the rule above given, and has distinctly held otherwise. Phelps v. Whitaker, 37 Mich. 72; Richards v. Fuller, Id. 161; Weiden v. Woodruff, 38 Id. 130; Wood Mowing & Reaping Machine Co. v. Gaertner, 55 Id. 453.
The cases of Nichols, Shepard & Co. v. Crandall, 77 Mich. 401; Rumely & Co. v. Emmons, 85 Id. 511; and National Cash Register Co. v. Blumenthal, Id. 464, — are clearly distinguishable from the present case. In the first the writing contained a specific warranty, and it was sought by parol to add a warranty as to the capacity of the engine. The Eumely case was similar, and it was sought, also, to show a verbal agreement that defendants would not be confined to the written warranty. In the last case defendant sought to show a contemporaneous verbal agreement to the effect that the vendee should receive the register on trial, and return it if not satisfactory. It was, however, expressly held that defendant might rescind the order because the machine did not register correctly. There is-reason for the rule that when the contract contains an. *279express warranty, and therefore, upon its face, shows that the subject of warranty was in the minds of the parties, they should not be allowed, by parol, to add to the instrument upon that subject; and this upon the principle that an express mention of one thing implies the exclusion of another. In the present case the writing contained no warranty. The only description of the apparatus is contained in the figures denoting the size. The principal ingredient of the thing sold was a process or system. The defendants bargained with reference to the utility of that process. The figures used throw no light upon that question, and cannot be said to have so defined the thing purchased as to exclude oral testimony as to representations concerning it.
The trial court correctly stated the law as to an implied warranty. Mr. Benjamin, in his work on Sales (section 661), lays down the rule that—
“If a man buy an- article for a particular purpose, made known to the seller at the time of the contract, and rely upon the skill or judgment.of the seller to supply what is wanted, there is an impliéd warranty that the thing sold • will be fit for the desired purpose; aliter, if the buyer purchases on his own judgment.'” Morse v. Stock Yard Co., 21 Ore. 289; Flint-Glass Co. v. Gunther, 31 Fed. Rep. 208; Bigelow v. Boxall, 38 U. C. Q. B. 452; Morehouse v. Comstock, 42 Wis. 626; Boothly v. Scales, 27 Id. 626; Machine Works v. Chandler, 56 Ind. 575; Fox v. Agricultural Works, 83 Cal. 333; Chapin v. Dobson, 78 N. Y. 74.
The court was correct in the instruction that the statement as to the utility of the apparatus would constitute-an express warranty, and that a warranty would be implied under the other circumstances stated. It was not necessary that he should state that the existence of the one-excluded the other. The rule that no warranty is implied when the parties have expressed, in words or by acts, the-warranty by which they mean to be bound, applies only *280•-when it is attempted to extend the warranty beyond the ■scope of that expressed.
We have examined the other questions raised, and find .no error in the record.
The judgment should therefore be affirmed.
.Long, J., concurred with McGrath, C. J.