Davis v. Ball

the seller of an article, who has inserted a warranty of the same in a bill thereof receipted, cannot, in an action against him on the warranty, give evidence of a prior bargain for a sale of the thing, at the same price without warranty, for the purpose of showing that the warranty was without, consideration. A dentist having made a set of teeth, and been paid therefor, and delivered them, with a written warranty for one year, and that if on trial, they could not be made useful, the purchaser might return them and recover back the money paid; it was held, that there was no latent ambiguity in the words “ made useful,” that would let in parol evidence to explain them; but that if the purchaser, by a fair and proper trial of the teeth, according to his own knowledge, and the instructions given him by the dentist, at the time of the delivery of the teeth, could not make them useful to him, he had a right to return them within a year and recover back the price.

The defendants, who were dentists in Boston, made an upper and part of a lower set of teeth for the plaintiff’s wife, who lived in Vermont, and delivered and received payment for the same, under an agreement stated in the bill therefor, of which the following is a copy : — “34 Tremont Bow, Boston, 1847. Mrs. Davis to Drs. Ball & Co. Dr. Teeth filled, cleaned, inserted, extracted, and all operations in the best manner. To operations in dentistry, August 20 : Inserting one upper set and part of lower set of teeth on gold plate, warranted for one year; and if on trial they cannot be made useful, the teeth to be returned and the money refunded when called. “$110. Beceived payment, A. Ball & Co.” This action was brought on the warranty, and tried before Byington, J., in the court of common pleas. The plaintiff produced evidence to show a breach of the warranty, by proving that the teeth could not be made useful to the plaintiff’s wife, and that they were returned to the defendants, and the price demanded of them, within a year from the date of the bill. The plaintiff also produced a witness who testified, that she was with the plaintiff’s wife when she employed the defendants, and was present when the contract was made, and that she was also three days with the plaintiff’s wife at her house, after she received the teeth from the defendants. On the cross-examination, the witness having testified that she was present when the bargain was made for the price, the defendants inquired what was the price. The plaintiff objected, because the price appeared by the written contract; and the evidence was rejected. The witness then testified, that she was at the defendants’ when the writing was made, and when the plaintiff’s wife paid the $110 and took the bill; at which time she had been in possession of the teeth for a day or two. The defendants then offered to show by this witness, on cross-examination, that there was a bargain made for the teeth, before the execution of the written one, which prior bargain contained no warranty, but was for the teeth, at the price paid for them; and they contended, that this evidence would show, that the statement of the warranty in the writing was without consideration. But the presiding judge ruled, that as there was a contract in writing executed at the time the money was paid, the evidence was inadmissible. The defendants contended, that there was a latent ambiguity in the words “ made useful,” which would be suggested by the inquiry, “ made useful by whom ? by the plaintiff’s wife, or by the subsequent adjustment of the defendants ? ” They thereupon contended, that parol evidence was admissible, to explain the ambiguity, and, for this purpose, they offered evidence, first, to prove the understanding and contemporaneous construction of the parties, by their conversation at the time; and, second, to prove the custom of the trade or profession by other dentists. The presiding judge being of opinion, that there was no such ambiguity in the contract, rejected the evidence, and instructed the jury, that, according to the true construction of the contract, the plaintiff’s wife was to make trial of the teeth by using them; that if they did not fit her, and she could not make them useful to herself by a fair and proper trial of them, according to her knowledge, and the instructions given her by the defendants at the time of the sale, she had a right to return them-; and that on returning them within a year, the plaintiff had a right to recover back the money which had been paid for them. The jury, under these instructions, found for the plaintiff and the defendants excepted.