Bush v. Bradford , 15 Ala. 317 ( 1849 )

COLLIER, C. J.

The contract between the plaintiff, by his agent, and the defendant, is evidenced by a writing. It merely acknowledges the receipt of a definite sum for blood stock, describing them by their names and pedigrees; and according to its legal effect, is a transfer of the stock by the plaintiff to the defendant, for the consideration expressed. There can be no doubt that the writing does not contain a warranty, either express or otherwise, of the ages or soundness of the stock, and it is therefore material to consider, whether it' is allowable to show by extrinsic proof, that there was such a warranty.

It has been repeatedly held, that where a bill of sale of a slave contained a warranty of title, that the vendee could not alledge and prove a verbal warranty of soundness, made at the same time. Wren v. Wardlaw, Miner’s Rep. 363; Duff v. Ivey, 3 Stew. Rep. 140; Pender v. Fobes, 1 Dev. & Bat. 250; Read v. Duncan, 2 McC. Rep. 167, Hitchcock v. Harris, 1 Mill. Rep. (Lou.) 311. So ^her^ bill of salpof a ship covenanted to defend the title/ArtVa^ the vendee could not set up a parol warrapiy. simultaneously made, that the ship was copper fastened. Mumford v. McPherson, 1 Johns. R. 414. If the bill^f 'Sale jmportsiio warranty, or any other contract beyond the mere conveyance of title, it is not permissible to add to it an additional stipulation by parol; for it must be presumed that the writing is complete, and fully discloses the contract of the parties. Van Ostrand v. Reed, 1 Wend. Rep. 424; Dean v. Mason, 4 Conn. R. 428; Reed v. Wood, 9 Verm. Rep. 285; Bayard v. Malcolm, 1 Johns. Rep. 467, by Kent, C. J.; O’Hara v. Hall, 4 Dall. Rep. 340. See further, Sommerville v. Ste phenson, 3 Stew. Rep. 271; Paysant & Ware v. Barringer, et al. 1 Ala. Rep. 160; The Montgomery R. R. Co. v. Hurst, 9 Ala. Rep. 513; Hair v. La Brouse, 10 Ala. Rep. 548; Brown v. Isbell, 11 Ala. Rep. 1009; Adams v. Garrett et al. 12 Ala. Rep. 229; Gordon v. Phillips, 13 Ala. Rep. 565; Austin v. Sawyer, 9 Cow. Rep. 39; Brigham v. Rogers, 17 Mass. Rep. 371; Hamilton v. Wagner, 2 Marsh. Rep. (Ky.) 331; Atherton v. Brown, 14 Mass. Rep. 152; Creery v. Holly, 14 Wend. Rep. 30; Thompson v. Ketcham, 8 Johns. R. 189; La Farge v. Richert, 5 Wend. Rep. 187; Simpson v. Henderson, 1 Mood. & Malk. Rep. 300; Ely v. Adams, 19 Johns. Rep. 313; Wright v. Weakly, 2 Watts’ Rep. 89; Hunt v. Adams, 6 Mass. Rep. 519; McCulloch v. Girard, 4 Wash. C. C. Rep. 292; Commissioners v. McCalmont, 3 Penna.Rep. 122; Sharp v. Sipsey, 2 Bail. Rep. 113; Shepherd v. Temple, 3 N. Hamp. Rep. 455; Reab v. McAllister, 8 Wend. Rep. 116; Gerrish v. Washburn, 9 Pick. R. 338; Hall v. Maccubin, 6 Gill and Johns. Rep. 107; McCreary v. McCreary, 5 G. & Johns. Rep. 147.

The writing in the present case is not a mere receipt for the price of the stock. True it acknowledges that the vendor has received the price, but it also purports to pass to the vendee the title, in consideration of the stun paid. In point of law, it is a bill of sale, and must so operate. There is nothing to indicate that it does not fully express the contract of the parties. We have seen that it does not contain a warranty in terms, and if any can be implied from it, it is that the stock are of the pedigree described; and in this particular it is not insisted that there has been a breach. As it respects their soundness and ages, there is no affirmation upon the face of the writing, and several of the citations we have made explicitly determine, that it cannot be interpolated by-proof of such a simultaneous verbal stipulation.

The warranty then being placed out of view, or rather its existence excluded by the form of the bill of sale, the evidence tending to disprove it, could not prejudice the defence; for whether the extrinsic proof showed facts which in the absence of a written bill of sale, would establish a warranty, was wholly immaterial — the silence of the bill of sale in this particular, would prevent the defendant from insisting upon it. This being the case, it is clear that the countervailing evidence being addressed to a defence which the defendant could not successfully assert, he has sustained no injury by its admission, and cannot avail himself of a mere abstract error, if indeed it be one. Strawbridge v. Spann, 8 Ala. R. 820.

The answer to the first interrogatory in the deposition of Likens, was admissible for the plaintiff, if for no other reason, because it tended to impair the weight of Yoe’s testimony, and perhaps in the opinion of the jury would have entirely destroyed its effect. Yoe, it is affirmed, saw the stock two or three days after the defendant’s purchase, and proves, that from their appearance at that time, they were incurably unsound when he bought them; he also speaks of the age of one of them, and states the difference in value which would be made by a difference in age. Now Likens states, that a few days after the sale, he informed the defendant that he had understood, the mare, “ Eliza Gray,” was older than she Was represented, and if he (defendant) was dissatisfied, witness would take her back, and allow him the price at which she was estimated in the contract; witness also offered to take back the colt, “ Mary Cochran,” on the same terms, but defendant refused both these propositions, remarking that he would not take for Eliza Gray one thousand dollars. This testimony tended to show the absence of fraud in misrepresenting the age of Eliza Gray, and that for the error of judgment, the defendant waived all claim to’ compensation ; and for these reasons, if no other, it was properly received. It was for the jury, if material, to inquire whether the conversation betweén Likens and ' defendant occurred previous to the discovery by the latter, that some of the stock were diseased, or Yoe was called on to administer medicine to them.

It was relied on as a defence to the payment of the note, that the vendor, or his agent, had practised a fraud upon the defendant. To repel this defence, the quo animo, the agent made representations in respect to the ages, &c. of the stock, was a material inquiry. It was therefore clearly competent for him to show that he acted in good faith, and the statements he made at the time of the sale were opinions honestly entertained by him.

Having determined that the bill of sale does not contain a warranty, and that it is not allowable to superadd such a term by extrinsic proof, we need not inquire whether a party who makes a sale of personal property, can be permitted to show, that the representations of his agent were not intended as a warranty, but as matter of belief or opinion. However this may be, we have seen that defendant could not have been prejudiced.

If there was neither a warranty or fraud, the pleas of a want and failure of consideration, could not be supported. Ricks, adm’r, v. Dillahunty, 8 Port. Rep. 134. It follows from what has been said, that there is no error in the ruling of the .circuit court; and the judgment is therefore affirmed.