Mullain v. Thomas

A seller of a liorse represented him to be six years old and sound, and at the same time made other representations as to his qualities. The purchaser requested a written warranty of the age and soundness, which the seller gave. Held that, in the absence of fraud in the making of the other representations, they were merged in the written contract.

Trespass on the case for fraud in the sale of a horse; brought to the Court of Common Pleas of New Haven County, and tried to the court upon the general issue, before Pede, J. The court found the following facts. On the loth day of May, 1874, the defendant sold a horse to the plaintiff, and gave him a warranty in writing in the following words: “Southbury, May 15, 1874. I, Harvey Thomas, Jun., sold a bay horse to Patrick Mullain. I warrant the said horse this day to be sound, and not to be over six years old. Harvey Thomas, Jr.” Previous to the sale of the horse, and to induce the plaintiff to purchase, the defendant stated to the plaintiff that the horse was not over six years old, and perfectly sound, and was kind and gentle to work double, but required some breaking to drive single. The plaintiff requested a written warranty of the age and soundness, which the defendant gave him in writing as above. Thereupon the plaintiff gave his note to the defendant for $150, the price agreed upon, which has not yet been paid. The horse was not over six years old, and was sound, and worked well with another horse, but was restive, not broken, and entirely unsafe to drive single, which was well known to the defendant at the time of the sale, and the plaintiff was unable to drive the horse single. He ran and broke the buggy of the plaintiff, while he was attempting to drive him single, and afterwards broke another wagon in which he was being driven single by the plaintiff. The plaintiff attempted to break the horse to drive single, but failed to break him. Objection was made by counsel for the defendant to the testimony of the conversation of the parties prior to the sale of the horse, on the ground that it was not admissible to add to, vary, or contradict the written warranty given by the defendant to the plaintiff; and the testimony was received subject to the objection. On the first day of September, 1874, the horse was taken by the plaintiff to the residence of Harvey Thomas, and left in the barn of said Thomas, in the absence of the defendant. The defendant then resided with said Harvey, who was his father. Upon these facts the plaintiff claimed that a clear case of fraud, or of representations known to the defendant to be false and fraudulent, sufficient to avoid the contract, had been established; that the giving of a written warranty as to a part of the representations made by the defendant, known by him to be true, while the other representations, which induced the sale, known by him to be false, were not also reduced to writing, was in itself a trick, and conclusive evidence of fraud; that the parties did not intend to reduce their contract of sale to writing, and that therefore the statute of frauds had no application to the case; that the court ought not to sustain the defendant’s objection to the proof offered by the plaintiff as to the representations of the defendant made prior to the sale, to induce the sale, because those representations were false, and intentionally fraudulent, and were not intended by the parties to be included in the warranty, which was reduced to writing; and that the written warranty was a matter by itself, having reference to the subjects of age and soundness only. But the court overruled all the claims of the plaintiff, sustained the objections of the defendant, and rendered judgment for the defendant. The plaintiff moved for a new trial.