McQuaid v. Ross

Taylor, J. The learned circuit judge having ruled that the plaintiff could not recover upon the theory that there was an implied warranty by the defendants that the bull was fit and competent to accomplish the purpose for which he was purchased, the only other material questions arising on the record are: (1) Did the court err in permitting parol evidence to be given to prove an express warranty not contained in the written bill of sale? And (2) if such evidence was admissible, does the evidence sustain the verdict of the jury upon that question? As we have come to the conclusion that the court erred in admitting any parol evidence for the purpose of proving an express warranty in this case, the second question becomes immaterial. This court, as well as nearly all other courts, has held that upon a sale of personal property which is evidenced by a written contract of sale, if such written contract contains any express warranty in regard to the thing sold other than such warranty as the law implies, no other express warranty can. be proved by parol. The ground of [474] these decisions is that such parol evidence extends, contradicts, or modifies the written agreement, and is therefore inadmissible. The parties to the sale having put the evidence of sale in writing, and such writing having expressly-warranted the thing sold in certain respects, the law presumes that no other express warranties were intended, and the courts will not receive parol evidence of other express warranty, because such evidence tends to change, enlarge, or modify the written contract between the parties. In the case of Merriam v. Field, 24 Wis. 640, 642, the late learned Justice Paine says: “ The plaintiff relied on a class of cases holding that although the bill of sale or other conveyance had been executed in writing, still when such paper did not profess or attempt to express the entire agreement between the parties, but was merely executed in part performance of it, the whole agreement might be shown, although part of it rested in parol. But the difficulty in apptying this rule here is that the written bill of sale does contain express warranties in respect to one or two particulars, and, when that is the case, it can no longer be said that the writing does not attempt to express the contract between the parties so far as express warranties are concerned. The presumption then is that it expresses the whole contract as to sucli warranties, and to allow others to be shown by proAÚng verbal statements ■ at the time of the sale would be in violation of the old and salutary rule against varying and adding to written contracts by parol evidence.” The rule of this decision has been frequently followed in this court, especially in Cooper v. Cleghorn, 50 Wis. 113, 123; Schultz v. Coon, 51 Wis. 416; Wiener v. Whipple, 53 Wis. 298, 303. The rule of this court is fully sustained by the decisions of many other courts, as will be seen by referring to the authorities in the brief of the learned counsel for the appellants. This rule is modified by this court, as well as [475] by many other courts, in case of warranties contained in deeds conveying real estate. See Green v. Batson, 71 Wis. 54, and the cases cited in the opinion in that case. The reasons for the distinction are fully stated by Justice OrtoN in the case cited. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.