McQuaid v. Ross

Sale of chattels: Warranty: Parol evidence. Upon the sale of a bull the vendor gave to the vendee a writing which, after setting forth the pedigree of the bull, stated: “Ihave this day sold the above-named bull ... to [the vendee]. I hereby certify the above pedigree to be true.” Held, that as this writing evidenced the sale and contained an express warranty not implied by law, parol evidence was inadmissible to show a further express warranty against sterility.

APPEAL from the Circuit Court for La Fayette County. The following statement of the case was prepared by Mr. Justice Taylor as a part of the opinion: This action was brought to recover damages on a contract for the sale by the defendants to the plaintiff of a thoroughbred Durham bull. The plaintiff in his complaint, in the first count thereof, seeks to recover damages on an implied warranty that the bull was not sterile and incompetent from latent defects to beget calves or generate Ms kind, and upon allegations that said bull was so sterile and incompetent, and so entirely wortMess for tbe purposes for wMch be was bought by tbe plaintiff, by reason whereof tbe plaintiff bad been greatly damaged. In tbe second count of tbe plaintiff’s complaint, be alleges that in consideration that tbe plaintiff would purchase said bull and pay tbe defendants therefor tbe sum of $125, tbe said “ defendants warranted said bull to be of a superior pedigree, and to be in good condition, and fit and suitable for the purposes for which be was purchased by tbe plaintiff,” and that, relying on such warranty, be purchased said bull and paid tbe defendants therefor tbe sum of $125, and that, after having fairly and sufficiently tested said bull, it was ascertained that be was sterile and entirely incompetent to beget calves, and wortMess for tbe purpose for which be was purchased, and upon ascertaining that fact tbe plaintiff returned tbe said bull to tbe defendants, and demanded repayment of tbe sum paid to them for him, and reasonable damages, which tbe defendants refused to pay. On the trial in tbe circuit court tbe learned circuit judge decided that tbe plaintiff could not recover upon tbe first cause of action, viz., upon an implied warranty that tbe bull was in all respects fit, suitable, and competent to perform tbe service for wMch be was purchased. And as to tbe second count, or cause of action, wMch charged that tbe defendants expressly warranted tbe bull fit and suitable for tbe purposes for which be was purchased by tbe plaintiff, tbe learned circuit judge submitted tbe case to tbe jury upon tbe evidence, and tbe jury found in favor of tbe plaintiff, and assessed bis damages at $192.35, being tbe purchase price and interest thereon. On tbe trial tbe plaintiff introduced, as evidence of tbe sale to him of tbe bull and bis purchase thereof, a writing signed by tbe defendants. TMs writing first stated at length the pedigree of the said bull, and then closes as follows: “ I have this day sold the above-named bull, ‘ Star of Fairview/ to P. F. MeQuaid, of Darlington, Wis. I hereby certify the above pedigree to be true. Dated June SO, 1888. [Signed] J. J. Ross & SoNs.” After the introduction of this contract of sale, the defendants objected to the introduction of any evidence on the part of the plaintiff as to what took place at the time of the sale, or before the sale, for the purpose of showing an express warranty of the bull, for the reason that “ the written contract conclusively proves the final contract between the parties concerning the qualities of the animal, and that parol evidence is inadmissible to change, modify, or add to the same.” This objection was overruled by the court, and the defendants duly excepted, and thereafter the court permitted the plaintiff to show by parol evidence all the conversations had between the parties while negotiating for the purchase and sale of said bull; and this evidence was allowed to be introduced by the plaintiff for the purpose of showing that the defendants, at and before the sale, warranted that said bull was fit, competent, and in every way suitable for the purposes for which he was purchased by the plaintiff. The defendants appealed from the judgment in favor of the plaintiff. To the point that where a sale is evidenced by a writing containing an express warranty not implied by law, other express warranties cannot be shown by parol, they cited, besides cases referred to in the opinion, 2 Benj. Sales, sec. 942, note 13; Chanter v. Hopkins, 4 Mees. & W. 399; Whit-more v. South Boston Iron Co. 2 Allen, 58; Button v. Ger-rish, 9 Oush. 89; Boardman v. Spooner, 13 Allen, 361; Frost v. Blameha/rd, 97 Mass. 155; Chandler v. Thompson, 30 Fed. Rep. 46; Ottawa B. <& F. G. Co. v. Gunther, 31 id. 210, and cases cited; Wichols v. Wyman, 71 Iowa, 160; Mast v. Pearce, 58 id. 579; Shepherd, v. Gilroy, 46 id. 193; BootKby v. Scales, 27 Wis. 632; Oollette v. Weed, 68 id. 428. They contended, inter.alia, that the so-called bill of sale is not a bill of sale and was not considered such by the parties. It is simply a certificate of the bull’s pedigree. It was not intended or considered by the parties as a warranty. It is a warranty neither of title nor soundness, and should not be held to preclude parol evidence of an express warranty of either of those elements which are alone susceptible of warranty. If held to be a warranty of •pedigree, then it carries with it, by necessary implication, a warranty that the bull would breed.