Collette v. Weed

Tayloe, J. It is claimed by tlie_ learned counsel for the appellants that on the day of .the date of the bill of sale the contract of sale between the plaintiff and the appellants was completed, and that upon such sale there was no guaranty as to the quantity of logs sold; that they were sold as an entire lot, after the respondent had examined for himself; and that he took the risk as to the quantity in the lot of logs purchased. On the other hand, the respondent claims that he bought the logs without any knowledge as to the quantity in the lot; that he depended wholly upon the appellants’ representations as to quantity, and upon an agreement on their part to guaranty the quantity by a written contract thereafter to be executed by them, and that, a few days after the delivery of the bill of sale, the appellants executed the written guaranty in pursuance of such agreement made at the time of sale. That the written guaranty was executed by the appellants a few days after the bill of sale was executed, is not denied by the appellants, but they seek to avoid its effect by an allegation that there was no consideration to uphold it. It is said the case comes within the decisions of this court in Congar v. Chamberlain, 14 Wis. 258, 264, and Morehouse v. Comstock, 42 Wis. 626, 629, where it is held “ that it is a general rule that a warranty must be made at the [434] time of the sale and be one of the terms of the contract, and that if it is made after the sale is complete or the contract performed, it will not be binding for want of a consideration. Chit. Cont. 397. But this is true only when there is no other consideration than the sale to support it.” The difficulty of applying this rule to the case at bar is that the court and referee both find from the evidence that it was a part of the contract of sale that the vendors should and did guaranty the quantity of logs sold, and that the written guaranty was simply carrying out the terms of the sale, and so the purchase of the logs by the respondent was a sufficient consideration for the guaranty; that the guaranty was in fact a part of the terms of the original contract, and that the writing simply expressed, what before existed in parol. It is said that the findings of the referee upon this point, are not sustained by the 'evidence. We think otherwise. It appears to us that the great weight of the evidence is in favor of the findings. The appellants having signed the guaranty in writing shortly after the delivery of the bill of sale, in which they impliedly admit that the sale was made upon the terms mentioned in said written guaranty, shows a sufficient consideration for the making of such guaranty, and is almost conclusive evidence that they had agreed to give such guaranty at the time the bill of sale was delivered. The finding of the referee is amply supported by the evidence on this question. That it is permissible to show by parol evidence that the vendor warranted the quantity of logs sold, notwithstanding the giving of the written bill of sale in which there is no such warranty made, is well supported by authority. Such evidence does not vary or contradict the terms of the bill of sale. See 2 Benj. Sales, § 943, note 14 (Am. notes by Charles Corbin); Boothby v. Scales, 27 Wis. 626; Marriam v. Field, 24 Wis. 640; Cas435 sidy v. Begoden, 38 N. Y. Super. Ct. 180; Bennett v. Tregent, 24 U. C. C. P. 565; Schuyler v. Buss, 2 Caines, 202; Boorman v. Jenkins, 12 Wend. 566; Hargous v. Stone, 5 N. Y. 73. If there had been no contract between the parties except the original written contract of sale, it is not clear that the plaintiff might not have recovered in this action upon an implied warranty that the quantity of logs sold was in fact the amount stated in such bill of sale. See Tarbell v. Bowman, 103 Mass. 343; Pickman v. Trinity Church, 123 Mass. 1; Mendenhall v. Steckel, 47 Md. 453; Marbury v. Stonestreet, 1 Md. 152; Mill v. Buckley, 17 Ves. 401; Stebbins v. Eddy, 4 Mason, 417. Rut as the evidence clearly tends to prove, and the court has found, that there was an express verbal contract to warrant the quantity, and such contract was in fact reduced to writing in pursuance of such verbal contract, it is unnecessary to determine what the rights of the parties would have been under the bill of sale standing alone. Upon the question as to the quantity of logs for which the plaintiff was entitled to recover under the agreement to make good the shortage, there was some conflict of evidence, but on the whole evidence the finding of the referee upon that question is fully sustained, and there is no sufficient reason for setting aside such finding. It is also urged that the action was prematurely brought; that all the logs had not been scaled before the action was commenced. This was not set up by the answer, and is probably not available to the appellants. We think the evidence shows that the plaintiff had caused all the logs he was able po find to be sealed before he commenced his .action, and the fact that a few were discovered afterwards should not defeat his action, especially as that defense was not interposed b}^ way of abatement to the action, but as a defense on the merits. The court, in fixing the amount of the shortage, has allowed the appellants the quantity dis [436] covered since the action was commenced, so that they are not injured by the fact that they were not discovered and scaled before the action was commenced. By the Court.— The judgment of the circuit court is .affirmed.