Bates Tractor Co. v. Gregory

Brooke, J. (after stating the facts). Defendants gave notice under their plea of the general issue that they would show in defense that they had been induced to sign the notes in question by false and fraudulent representations of the plaintiff, and that by reason of said fraud they had been greatly injured and dam [13] aged, which they claimed the right by way of recoupment to set off against the demand of the plaintiff and have the balance certified in their favor. In opening the case counsel for defendants said: “Now, our defense is not for a breach of warranty or guaranty, but it is that we were induced to enter into a contract of which these notes are a part through a false and fraudulent representation of the plaintiff which we relied upon and which induced us to enter into the contract.” Defendants rely in support of their contention for an affirmance of the judgment upon the case of Phelps v. Whitaker, 37 Mich. 72, and J. B. Millet Co. v. Andrews, 175 Mich. 350 (141 N. W. 578), and cases there cited. Plaintiff insists that the c-ase is governed by the recent cases of Detroit Ship Building Co. v. Comstock, 144 Mich. 516 (108 N. W. 286); Witteman Co. v. Brewing Co., 183 Mich. 227 (150 N. W. 109); Linderman Machine Co. v. Shaw-Walker Co., 187 Mich. 28 (153 N. W. 34); and John D. Gruber Co. v. Smith, 195 Mich. 336 (162 N. W. 124). We are of opinion that the contention of plaintiff must prevail. In principle the case at bar cannot be distinguished from the four cases last above cited. In those cases we have held that, where the parties to a contract reduce it to writing and agree as to what warranties said written contract shall contain, other warranties growing out of antecedent representations may not be imposed upon the vendor. An examination of the contract in the case of Phelps v. Whitaker, supra, relied upon by defendants, discloses the fact that the contract itself was absolutely silent as to any warranties, and this is likewise true of the contract considered by this court in J. B. Millet Co. v. Andrews, supra. Representations in the nature of warranties antecedent to the contract cannot be urged as fraud in cases where the contract is in writing, and contains specific warranties. The evidence introduced upon the part of the defendants [14] should have been rejected, and a judgment should have been entered for the plaintiff for the amount of the two notes. Judgment reversed, with costs, and new trial granted: Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.