Sooke Harbour Fishing & Packing Co. v. McCallum ( 1924 )

NETERER, District Judge

(after stating the facts as above). The contract is in writing, definite and complete; it is couched in terms which import a complete obligation. There is an absence of fraud, accident, or mistake in its execution. It is conclusively presumed that the entire engagement, the extent and manner of the undertaking, is embodied in the writing. Seitz v. Brewers’ Refrig. Mach. Co., 141 U. S. 510, 12 S. Ct. 46, 35 L. Ed. 837; Chesapeake & V. C. Co. v. R. B. C. Co. (C. C. A.) 291 F. 1011; Inner Shoe Tire Co. v. Treadway et al. (C. C. A.) 286 F. 838; Silverthorne et al. v. McFarland (C. C. A.) 266 F. 60. The contract being complete in itself, a prior or contemporaneous oral warranty as to the quality of the fish cannot be shown. Grubb v. House, 93 Wash. 200, 160 F. 421. The contract upon its face negatives the allegation in the affirmative defense as to the quality of fish for a special purpose. The fish were such “as may be necessary to supply the fresh fish trade of Victoria during said season.” The fish would not be taken from a private stock. They were not owned by the plaintiff, eared for and fed by it, but were ferae naturae.

The agreement of the plaintiff was primarily the catching of fish at a designated point in the waters oE the sea, and delivering them to the defendants for a stipulated price. The defendants knew as much about the quality of the fish as the plaintiff. If the fish had been unfit for the fresh fish trade of Victoria, or been reduced to the plaintiff’s possession, been under its custody and control, and responsibility thereby resting upon the plaintiff to care for the fish, the relation would be different; but when taken from the wild state, from the waters of the ocean, and the agreement being limited to the catching and delivering at the designated point, the presumption on the record is conclusive that there was no warranty as to kind or character. The cases cited by the defendants have no application. If understood that the fish were for a particular purpose, the specific fish contracted for were caught at the designated place and in the agreed manner during the time stipulated, and furnished the vendee. No express warranty was exacted, the risk for fitness for the intended use was assumed, and implied warranty may not now be invoked.

The motion to strike is granted.