Houghton v. Carpenter

[593] The opinion of the court was delivered hy Peck, J. The plaintiff claims to recover for a breach of warranty as to the quality of a quantity of butter sold by the defendant to the plaintiff. The facts found by the referee exclude the idea of any fraud in the sale, and no claim is made on any such ground. The sale, warranty and breach are indispensable to the plaintiff’s right of action. * ,f It is insisted on the part of the defence that the referee erred in receiving parol evidence to prove the contract of sale and warranty. This question the referee refers to the court. The ground of the objection urged, is that the “ bill of butter,” as it is called, introduced by the plaintiff, is such a written contract as excludes the parol evidence. It is conceded by the plaintiff’s counsel that the principle that parol evidence is inadmissible to vary or alter a written contract, or to add to it further stipulations, is applicable to bills of sale executed in the common and usual form of such instruments. For the purposes of this question, the particular form of a bill of sale is not material if it contains the substantial elements of a contract. If the bill of sale, memorandum, receipt or whatever it may be called, in this case, possesses the necessary elements of a contract of sale, the parol evidence was inadmissible ; otherwise it was properly received. The paper or memorandum in question is this: At the top of the paper is written, “ Stamford, January 10th, 1860. Elias K. Carpenter, bill of butter.” Under this is a column of figures, 72Jlbs., 76J lbs. &e. Under these figures is the footing 603 lbs.; opposite which are written the words, “ gross, tare each 11 lbs.” under which is written, “ received payment for the above butter as weighed at Weld’s store,” and signed, “ Elias K. Carpenter.” The question is whether this is such a written contract of sale of a quantity of butter from the defendant to the plaintiff as to exclude parol evidence of such sale with warranty as to quality. To constitute a sale there must be a buyer, a seller and a thing sold, and words importing a transfer of the title of the thing from the seller to the buyer. To constitute a perfect written contract of sale all this must appear upon the instrument. The price is also usually specified ; but for the purpose of the question in this case, that per [594] haps is not essential to be specified in the writing. There is enough on this memorandum to show that the figures represent butter and its weight. But there is the name of no person upon the paper except that of the defendant as above stated. The memorandum not having upon it the name of the plaintiff or any name but that of the defendant, if it is a written contract of sale, it is a sale without a purchaser. Nob does it contain any words importing a transfer of title. Nor is there any thing on the paper that necessarily shows that the name of the defendant represents him in the character of a seller; much less a seller in a contract in which the plaintiff is a buyer. The name of the defendant at the top of the instrument may as well be taken to indicate that he is a buyer as a seller; but it imports neither. The words at the bottom, “ received,payment for the above butter,” do not necessarily import a sale ; much less a sale to the plaintiff. The whole instrument is no more consistent with a sale to the plaintiff than it is with the idea that the plaintiff and the defendant owned the butter in common, and had sold it to some third person, and that the defendant had received payment; and this memorandum taken with a view to evidence in a future adjustment of the receipts of each, between these parties. It does not state of whom the defendant received payment. The paper therefore does not of itself prove a sale from the defendant to the plaintiff. It neither shows that the plaintiff bought the,butter or that the defendant sold it. It was mere data or memoranda of weight of butter, and evidence that the defendant had received payment from- some one not named; and is of no legal force or import as a contract and was unmeaning until the parol contract was proved to give it application. The plaintiff having a right to prove such sale by parol, was at liberty to prove the warranty. The next objection insisted upon by the defendant’s counsel' is, that the conversation between the parties, found by the referee, does not amount to a warranty ; the counsel is right in the position that in order to amount to a warranty, it must have been so understood by the parties at the time of the sale ; and unless the referee has substantially so found as matter of fact, the report shows no warranty This point is not free from difficulty, the plaintiff having bought the [595] butter on inspection, and none of tbe statements or representations necessarily importing a warranty. The referee has not in terms found us matter of fact that there was a warranty. The referee after detailing what was said by the parties in negotiating the trade, says, “ I find that the language employed by the parties while negotiating respecting the said butter, imported that the said butter should be of the best quality and first class for table use ; that both parties so understood it, and intended it to make a part of the contract as to the quality of the butter. And as a conclusion of law that said language amounted to a warranty that the said butter was of such quality ; in arriving at such conclusion I intend to decide according to law.” In all this the referee has not said in terms that the parties mutually intended a warranty, nor that it was mutually understood by the parties in the language used, at the time of the trade, that if the butter was not of the quality represented by the defendant, he would stand responsible to make it good according to his representation ; but as the referee reports what was said and finds that the language used imported that the said butter should he of the best quality and first class for table use, that both parties so understood it and intended it to make a part of the contract as to the quality of the butter, we are inclined to hold that he intended by it a warranty, that is, that if the butter was not of that quality, the defendant was to make it good, as represented. It is again insisted that it was the duty of the plaintiff, when he discovered that the butter did not answer the warranty, to notify the defendant and return the butter within a reasonable- time, and that his neglect to do so is a bar to his recovery. But when property is bought on inspection with warranty as to quality, we do not understand any such duty is imposed on the purchaser in order to entitle him to an action for breach of warranty. Nor has the purchaser generally a right in such case to return the property; although he has such right if there is fraud in the sale on the part of the seller. Where property is not bought on inspection, but the sale is executory, the seller contracting to furnish goods of a particular quality, and forwards them, and they do not answer the contract, the buyer may return them ; and if he neglects to do so, but keeps [596] the goods and appropriates them to his own use, it is often held that the objection to the quality is thereby waived. But that rule is not applicable to a sale like this, a purchase made on inspection of the specific property at the time of the sale. The error in the defendant’s position arises from confounding the two classes of cases which are entirely distinct. It is also objected that the referee adopted a wrong rule of damages. The rule adopted by the referee was in effect the difference between the price paid and the actual value of the butter at the time the plaintiff purchased it of the defendant. The rule of damages in such cases is, as claimed by the counsel of the defendant, the difference between the actual value of the property at the time of the sale, and what its value would have been had it been as warranted to be. But where there is no evidence as to the value of the property as warranted, except what may be inferred from the price stipulated in the sale, that price may be taken as what its value would have been had it been as warranted. As there was no evidence in this case as to the value of the bulter as warranted to be, except the price stipulated in the contract, it is to be taken that the price paid was the value of such butter as this was warranted to be ; so that the rule of damages adopted by the referee is, as applicable to this case, the same in effect as that for which the defendant’s counsel contends. The difference is only in the form of stating the rule, the result being the same. Judgment affirmed.