Fairbanks, Morse & Co. v. Nelson

(after stating the facts as above). [1] It is assigned as error that the court admitted oral evidence to alter or modify the terms of the written contract, in violation of section 1698 of the Civil Code of California. The evidence so objected to was the testimony of the defendant that during the demonstration the wheels of the tractor sank into the ground to such an extent as to prevent successful operation, and that the agent of the plaintiff, to overcome the difficulty, promised to secure and furnish certain extensions to be put on the wheels to afford them a greater surface. It is said that the purpose of this testimony was to excuse compliance by the defendant with the obligation of his written contract to accept or reject the tractor on or before the fifth day. It is"a sufficient answer to this assignment of error to direct attention to the fact that no objection was made to any of the testimony so introduced. But inasmuch as an exception was taken to the finding of the court below that the plaintiff by its conduct and representations waived the right to require the defendant to malee his decision on or before the fifth day from the beginning of the demonstration, and that…