Fudge v. Kelley

Ladd, J.

1. Evidence: “parol evidence” rule: contracts partly written, partly oral: when oral part provable: warranty. — I. The defendant was operating a dairy in Des Moines and entered into a written contract with plaintiff John R. Fudge, under which he agreed to sell 21 cows and other property. According to Fudge, defendant said he would guarantee all of the cows to be with calf and the purchase was made in reliance thereon. Only five proved so to be and, as the matter of warranty was not touched in the contract, extrinsic evidence was admissible to establish the same as resting in parol. Fawkner v. Smith Wall Paper Co., 88 Iowa 169 ; Lake Manawa Ry. Co. v. Squire, 89 Iowa 576 . This is on the theory that, the contract resting partly in writing and partly in parol, the latter, being in no wise inconsistent with former, might be shown.

2. Evidence: “parol evidence” rule: written warranty foreclosing oral warranty : when rule inapplicable. The defendant denied making the oral warranty, but testified to having told Fudge that all the cows had been bred. The trial court found that defendant had warranted the cows to be with calf, as alleged, but held that, as the bill of sale subsequently delivered contained the clause, “I hereby warrant the title of said property and that it is free from any incumbrance or liens,” the alleged oral warranty might not be proven. Such written warranty of title was not in pursuance of any talk or understanding between the parties and was merely a part of the *424 printed form of a blank bill of sale used, and the bill of sale was turned over, with a lease of the premises, on payment of a part of the purchase price in money and the execution of a note and chattel mortgage securing it for the balance. No additional consideration passed, owing to the insertion of the written warranty. On the contrary, the price paid was that which the parties had agreed upon in the preliminary written agreement, and we are of opinion that the oral warranty, if made, was binding, and that the insertion of the written warranty of title in the bill of sale added nothing to the preliminary contract, as (a) in any event defendant was bound to pass a good title, and (b) such written warranty was without consideration. Valerius v. Hockspiere, 87 Iowa 332 ; Aultman & Co. v. Kennedy, 23 N. W. (Minn.) 528.

Having found that there was a warranty, the court should have assessed the damages consequent upon the breach thereof. The facts of the case do not bring it within the rule of the decisions cited by appellee. See Western Electric Co. v. Baerthel, 127 Iowa 467 ; Four Traction Auto Co. v. Hurni, 156 Iowa 725 .

„ . 3. Appeal and peai°“ notice errorU£°datey: oi judgment. II. Judgment was entered October 15, 1913. Appeal was perfected therefrom and then dismissed, and thereafter plaintiffs moved for new trial on the ground of newly discovered evidence. This motion was overruled -A-pril 4, 1914, and three days later, plaintiffs cause<i notice of appeal to be served, reciting that they “have appealed from the judgment of the district court aforesaid rendered against them in the above entitled cause on the 4th day of April, A. D. 1914.” This error in the date was not material, as the judgment was sufficiently described without it. Kennedy v. Rosier, 71 Iowa 671 ; Parker v. Assn., 108 Iowa 117. — Reversed.

Deemer, C. J., Gaynor and Salinger, JJ., concur.