Koop v. Handy

By the Court, Clerke, J. I. For the present, let us assume that this is an action for the breach of a contract of warranty. The instrument, upon which it is founded, is in the following words: New York, Deo. 30, 1869. Sold Mr. G-. H. Koop, for account of Messrs. Handy & Everett, about 20 tons divi divi, at $45 cash per ton, to be put in bags and delivered as soon as possible. John L. Kahl, broker, 78 Pine street, near Pearl. The counsel for the plaintiffs called the broker, Mr. Kahl, as a witness at the trial. He testified, that he went to the office of the defendants in Burling slip, got from them a sample of this divi divi, (an article of commerce of which, by the way, I have never before heard,) ascertained their price for it, carried the sample to the plaintiffs, at their office in Cedar street, and thereupon executed, in his office in Pine street, a sale note, of which the above is a copy, gave a copy of it at once to the defendants, and a day or two afterwards gave the original to the plaintiffs. The plaintiffs’ counsel then asked the witness whether the defendants, at the time he procured the sample from them, said any thing in relation to the quality of the bulk of it, as compared with the sample. The defendants’ counsel objected to the question, .on the ground that the sale note, being in writing, no parol evidence in relation to the sale could be received.. The court sustained the objection, and the plaintiffs’ counsel duly excepted. It is scarcely necessary to state the well known rule, that, where a written contract appears on its face to be complete, you can no more add to or contradict its legal effect by parol stipulations, preceding or accompanying its execution, than you can alter it through the same means in any other respect. The instrument must, however, have completeness on its face; and, as a general rule, every instrument is presumed to be complete. But, in order to exempt a case from the [461] operation of the rule, it is not necessary that the writing should expressly and directly rebut the presumption of completeness. In Jefferey v. Walton, (1 Stark. 267,) referred to by Mr. Phillipps in his Evidence, and by Judge Cowen in his Notes to this work, an action was brought for not taking proper care of a horse which the defendant had hired of the plaintiff. At the time of the hiring the following memorandum was made: “ Six weeks at two guineas. William Walton, jun.” Lord Ellenborough treated it as a contract incomplete on its face. In admitting evidence that the defendant, at the time of hiring, agreed by parol to be responsible for all accidents, he said: “ The written agreement merely regulates the time of hiring, and the rate of payment, and I shall not allow any evidence to be given by the plaintiff in contradiction of these terms; but I am of opinion that it is competent for the plaintiff to give in evidence supplementary matter as part of the agreement.” Bills of parcels have been held to fall within the range of the exception. In Harris v. Johnson, (3 Cranch, 311,) it was held that a bill of parcels, or sale note, delivered by the vendor, stating the goods as bought of the vendee and another, is not conclusive evidence against the vendor that the goods were joint property; but the real circumstances may be explained by parol. There are many similar cases. The most recent in our own courts is that of Filkins v. Whyland, (24 N. Y. Rep. 338.) The instrument was in the following words: “0. B. Filkins bought of 0. Whyland one horse, §150. Bec’d payment. G. Wetland.” It was held that this did not exclude parol evidence of a warranty of soundness. It was held that it was a mere acknowledgment of payment, and was not meant by the parties to be a written contract. The court were of the opinion that, to justify the exclusion of parol evidence, the contract must be a formal one, and that it must appear, [462] from the face of the instrument, that the parties intended to consummate the agreement by writing. The instrument, in the case before us, would be very nearly similar to that in Filkins v. Whyland, if it had a receipt appended to it. It is, evidently, a mere note or memorandum of the sale, signed by the broker, without any indication that it should contain all the terms necessary to satisfy either party, or to consummate their intentions in a transaction of this nature. It is silent as to the place of delivery, and as to the place where the article was then situated. It is in every respect as informal as the memorandum in Filkins v. Whyland; and I can scarcely think that the mere absence of a receipt, appended to it, makes it more formal or more complete than the memorandum in the case to which I have referred. Suppose, for instance, that the broker in this case, after he signed his name to this note of sale, signed a receipt subjoined to the note or on the other side of the paper, would it, in effect, be at all different? Would the receipt detract from the formality of the instrument ? I am disposed to think none of these memoranda of sales, whether receipts are or are not appended to them, are ever intended by the parties to be complete contracts. They all alike want that formality without which it cannot be supposed that the parties exercised that forethought and circumspection which they no doubt would have exercised, if the instrument was any thing more than a mere note, memorandum, or entry. I am aware that Harnor v. Groves (6 J. Scott, 667; 80 Eng. Com. Law Rep. 667) is strongly opposed to this view. The instrument, in that case, was a mere memorandum or note; and all the judges held that the parties were bound by the written note, and that the purchasers could not be allowed to prove, by parol evidence, that the article sold was warranted. The only difference between that and the case under consideration is, that in the one, the note of sale was signed by the vendor himself; in the other, it was signed by a broker, who casually undertook to intervene between the [463] parties. This difference may not be essential, although, I think, in taking into consideration the question of formality and completeness, that it is not without weight. At all events, if Filkins v. Whyland is sufficiently in point, it, of course, controls our decision. II. Even, however, if this memorandum should be deemed a complete contract, I am inclined to think that the plaintiff was entitled to prove fraud on the part of the defendants in this transaction. I do not deem this an action ex contractu, but an action ex delicto. A well established exception to the general doctrine, which regards all anterior and contemporaneous stipulations and representations as merged in the written contract, exists where one party sues another, alleging as the gravamen of his action some fraud of the latter, by which the former was induced to enter into the contract. The pleadings in this case sufficiently, though not formally, put in issue the question of fraud and concealment on the part of the defendants, in the sale of the divi divi. The complaint states that the defendants represented to the plaintiffs that their said divi divi was of as good a quality as the sample shown to them; that the plaintiffs believed such representations to be true, and, relying upon these representations, made the purchase; that the bags containing the same were nearly filled with damaged divi divi, which was almost worthless, and which inferior and worthless article was covered on the top and sides with divi divi of the kind and quality represented to the plaintiffs; the defendants thereby intending to prevent the detection of said damaged divi divi. The gravamen of the complaint then seems, or may, without violence to the language, be deemed to be fraud. It is not necessary, at all events, under our present system, to allege fraud in set and technical terms. The defendants in their answer assume the allegation of fraud in the complaint; and, in express and positive terms, traverse it, clearly making fraud the issue to be tried. On this ground, therefore, if not upon the ground which I have [464] first presented, I feel greater confidence in thinking that this judgment should be reversed, and a new trial ordered ; costs to abide the event. [New York General Term, May 2, 1864. It may be well to notice a point taken by the counsel of the plaintiffs, in which he insisted that the law, in the sale of commodities like divi divi, will raise an implied warranty. He insisted, even if this memorandum could be considered a complete contract, that according to Boorman and Johnston v. Jenkins, (12 Wend. 574,) and Waring v. Mason, (18 id. 425,) the law implies a warranty, as in a sale, by sample, of cotton. If these cases take the sale of cotton by sample out of the general rule of the common law, so as to create an implied warranty, it must be, as the chancellor says in the latter case, upon the ground that it is impossible, in the customary mode of examining and selling cotton in the bale in this country, for the purchaser-to ascertain the defect, and that it is not within the principle of the common law rule of “caveat emptor.” We would not be justified, I think, even if there was a more positive and stronger current of authority in favor of cotton, to extend the exception to the article sold to the plaintiffs in this case. ¡Neither was there any proof, or any offer to prove that it was impossible, or extremely difficult, for the purchaser to examine the article, from the manner in which it was packed or situated, in order to ascertain its condition. On the contrary, the defendants allege in their answer that the divi divi lay in the hold of a vessel called the Aina, at the port of ¡New York, open to the inspection of all, and where the same could easily have been examined. There was no offer, on the part of the plaintiff, to rebut this allegation. I repeat, however, for the reasons which I have above stated, that the judgment should be reversed, and a new trial ordered; costs to abide the event. Clerke, Sutherland and J. F. Barnard, Justices.]