Lower v. Hickman

Hill, C. J. An examination of the rejected evidence, the memorandum alleged to have been signed by 'Hickman and the final contract signed by Lower and Gann, will show that two questions have arisen: 1. Was it competent to prove an oral warranty of -the capacity of the sawmill ? 2. Was it competent to prove' that the words “sawmill cap. 20,000” on the memorandum meant a warranty that the sawmill had a capacity to cut 20,000 feet of lumber per day? 1. A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. It may be a complete contract signed by both parties and comprehensive and exhaustive in detail, and contain many mutual agreements, terms and stipulations, or it may be a simple ibill of sale, or sale note evidencing the sale. The principle is the same in any of these transactions, and oral evidence of a warranty is almost universally excluded when a complete written instrument evidences the sale. It is not important that the instrument be .signed by both parties, for acceptance of the other may be equally binding, and the principle here invoked is as often applied to unilateral as to bilateral instruments. For the statement of the principles involved and the many applications thereof see: 4 Wigmore on Evidence, § 2434; and review in notes; 1 Elliott on Ev. § 580; Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510; Hanger v. Evins, 38 Ark. 339; Hooper v. Chism, 13 Ark. 496; Reed v. Wood, 9 Vt. 285; Naumberg v. Young, 44 N. J. L. 331; Diebold Safe & Lock Co. v. Huston, 55 Kansas, 104; Am. Mfg. Co. v. Klarquist, 47 Minn. 344; Miller v. Municipal E. L. & P. Co., 133 Mo. 205; McCray Ref., etc., Co. v. Woods, 99 Mich. 269; Mast v. Pearce, 58 La. 579; Grand Ave. Hotel v. Wharton, 79 Fed. Rep. 45; Buckstaff v. Russell, 79 Fed. Rep. 611; Galpin v. Atwater, 29 Conn. 93. The evidence attempting to prove a warranty by parol was properly rejected. 2. According to the evidence of Lower and Gann, Hickman made them a verbal proposition and put into writing a statement of what constituted the mill output, and at the bottom of this list of property is added: “Sawmill cap. 20,000.” This meant, according to their testimony, that the sawmill had a capacity to cut 20,000 feet of lumber per day. The contract signed by Lower and Gann shows it is a complete contract between the parties embracing the subject-matter of their negotiations, except the capacity of the sawmill. The property listed in the contract is described with minuteness and detail, and not in general terms, as in the memorandum. The contract contains every thing in the memorandum except the capacity, and much more. It stipulates terms and times of payment, the security for payment,’ a reservation of title, the rights of possession before and after default, and that in case of default in full payment the partial payments shall be considered rent. If the capacity of the mill had been omitted from the final contract by accident, mistake or fraud, on proper proof equity would grant relief. Pickett v. Ferguson, 45 Ark. 177; Goerke v. Rodgers, 75 Ark. 72; Mast v. Pearce, 58 Ia. 579; 4 Wigmore, Evidence, § § 2413, 3416. Antecedent propositions, correspondence, prior writings, as well as oral statements and representations, are deemed to be merged into the written contract, which covers the subject-matter of such antecedent negotiation, when it is free of ambiguity and complete. Pickett v. Ferguson, 45 Ark. 177; Richardson v. Comstock, 21 Ark. 69; McClurg v. Whitney, 82 Mo. App. 625; 17 Cyc. pp. 596, 598. There is nothing here to impeach the integrity of the. final draft of the contract; and as it embraced everything in the prior negotiations and memorandum except the capacity of the sawmill, it must be presumed that the parties did not intend to engraft into the contract any warranty of the capacity of the mill, and it can not be engrafted upon it by parol. The case was properly tried on the issue raised as to false representations, and in strict conformity to the last enunciation of this court upon that subject. La. Molasses Co. v. Fort Smith Wholesale Gro. Co., 73 Ark. 542. Affirmed. Riddick and McCulloch, JJ., dissent.