Mullain v. Thomas

Poster, J. Some of the claims made by the plaintiff as to points decided in the court below, are clearly on questions [254] of fact, not of law, and so cannot be reviewed here. Whether the parties intended to put their contract in writing or not, and whether they did so or not, are simple matters of fact. The language of the motion is perhaps not perfectly clear as to whether the oral testimony which the plaintiff offered as to the representations made by the defendant, before the sale of the horse, were finally admitted or rejected. As we understand the motion, this testimony was received. The record states that it was received subject to objection, and it is nowhere stated that it was afterwards ruled out. It is stated that the court overruled all the claims of the plaintiff, but that allegation is satisfied if we interpret it to mean that the court found no fraud in the representations made by the defendant to induce the sale, all the claims of the plaintiff of course being summed up in the charge of fraud, and no fraud having been found, there was nothing to take the case out of the general rule which regards all anterior and contemporaneous representations as merged in the written contract. If the testimony is considered as received, the plaintiff must be held to have had the benefit of it. We cannot revise the decision which the court made as to its effect, even though the decision might not be in accordance with our views. Certainly no foundation can thus be laid for a motion in error or for a new trial. It is difficult to see how a contract can be partly oral and partly in writing. As to age and soundness, the plaintiff asked for a written warranty, and the defendant gave it. There is no claim that there has been any breach of that warranty. Nor is there any complaint as to the representations made that the horse worked well in double harness. He did so. The plaintiff undertook to drive him in single harness, and he was found restive, not broken, and entirely unsafe. It is found that this was well known to the defendant. Here is the ground of complaint. It is however also found that the defendant told the plaintiff that the horse required some breaking to drive single. No fraud, as matter of fact, is found by the court below, and we cannot, on this finding, as matter of law, pronounce that the defendant has [255] committed a fraud. The plaintiff attempted to break this horse to single harness, and failed to accomplish it. There is nothing in the finding which proves that the defendant made any representations on that subject with intent to deceive the plaintiff. Being notified, as the plaintiff was, that the horse was not broken to single harness, there was enough to put him upon enquiry, and if he apprehended difficulty in so breaking him, it was his privilege to demand a warranty on that subject. As he did not demand such warranty,- it seems but a natural inference that the plaintiff was willing to take on himself the risk of breaking the horse to single harness. Upon the whole, we are of opinion that there is no error in the judgment below, and that the motion for a new trial should not be granted. In this opinion the other judges concurred.