Mast & Co. v. Pearce & Cowan

Bothbock, J.

The written contract of sale is complete in itself. It, in substance, recites a sale of the cultivators at certain prices, and to be paid for in a certain manner. It is signed by both parties, and, to be fully understood, does not require the aid of extrinsic evidence. It contains no warranty of any kind as to the quality of the cultivators. The principal question discussed by counsel is, whether or not, where there is a written contract of sale complete in itself, it is competent for the purchaser of the property, by allegation and proof, to show that there was a parol warranty of the quality of the property sold? It is urged by the appellees that the *581 appellants cannot make the question upon this appeal, because the plaintiffs pleaded over after the motion to strike the allegation of a parol warranty was overruled. But the plaintiffs were not required at their peril to stand on the ruling and allow judgment to go against them. They promptly objected to the evidence of the parol warranty and took their exceptions. They requested the court to instruct the jury that, as there was no warranty embodied in the written contract, a parol warranty could not be shown, and was not binding on the plaintiffs. The instructions were refused and proper exceptions were taken. In the motion for a new trial the plaintiffs distinctly made the point that the court erred in permitting defendants to prove a parol warranty, the contract being in writing, and erred in refusing to give the instructions asked, and for these reasons among others, they asked that the verdict be set aside. It is said by counsel for appellees that the assignments of error are not sufficiently specific. "We think otherwise. So far as they l-elate to the question under discussion they could not well be made more definite and certain.

1. SALE: contract in writing : parol warranty. Having disposed of these questions of practice, we come to a consideration of the proposition above stated. In Benjamin on Sales, See. 621, it is said: “Where the written sa^e contains no warranty, or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case or to extend it in the latter by inference or implication.” And, in Parsons on Contracts, Yol., 1, p. 589, the author says: “And where the contract of sale is in writing and contains no warranty, then parol evidence is not admissible to add a warranty.” The learned authors cite a number of authorities in support of the rule. Such of these as we have examined fully sustain the proposition. Indeed, we feel quite sure no authority can be found holding a contrary doctrine. The rule rests upon the familiar principle that the writing is supposed to contain all the contract, and, that it cannot be added to or varied by parol .evidence. It will be *582 understood that there is no fraud, accident or mistake averred in the answer in this case, and' that the written contract amounts to a contract of sale. It’is not an instrument merely intended as a receipt, or as an acknowledgment of the payment of the price or the like. It seems that in'such cases parol evidence is not admissible to show a warranty. Parsons on Contracts, Yol. 1, p. 589. We think the court should have excluded the evidence as to a parol warranty, and should have instructed the j ury that the parties were bound by the terms of the written contract. As the judgment must be reversed for the error above described, it is unnecessary to determine the other alleged errors. They are not such as will likely arise upon a retrial. Counsel for appellees claim that the abstract of appellants is not in compliance with the rules of this court in form and substance. While it is true it might have been more condensed, yet we do not think there is such a departure from the rules as to justify us in imposing costs upon appellants.

Reversed.