Gelb v. Waller

MacLEAN, J. The plaintiff claimed damages for breach of warranty, and the defendants answered general denial, demanding particulars. The pleadings were oral. The particulars furnished in substance recited a purchase of one black horse by the plaintiff from the defendants with a warranty of soundness for the sum of $140, the unsoundness of the horse, and a demand for the return and refusal of the sum so paid. In the court below judgment was erroneously rendered in favor of the plaintiff for the full sum paid by him for the horse. Whether there was a warranty as claimed, collateral to the sale transaction herein, was a question of fact, to be determined from the evidence presented, and the plaintiff was not precluded from offering evidence to prove it, even by the insertion in the bill of sale of the expression “as he is,” no matter when inserted, because it has been held that a writing in form as said writing herein, even though designated as a bill of sale, with payment receipted, did not constitute a contract of sale, so as to exclude parol evidence of warranty. Filkins v. Whyland, 24 N. Y. 338, cited with approval in Coe v. Tough, 116 N. Y. 273, 277, 278, 22 N. E. 550. This doés not offend the generally [203] recognized rule of law, but “where the writing does not purport to disclose the contract, or cover it; where, in view of its language, read in connection with the attendant facts, it seems not designed as a written statement of an agreement, but merely as an execution of some part or detail of an unexpressed contract; where it purports only to state one side of an agreement merely, and is the act of one of the parties only, in the performance of his promise—in these and the like cases the exception may properly apply, and the oral agreement be shown.” Eighmie v. Taylor, 98 N. Y. 288-297. Assuming, then, the warranty proven as claimed, the plaintiff, to whom had passed the title to the horse in question, had no right to return the horse and recover the price, at least not in an action for damages for breach of warranty. While it is a disputed question in American law whether a buyer who has bought with a warranty may return his purchase and rescind the sale upon warranty broken, according to the English law (Street v. Blay, 2 B. & Ad. 456) and according to New York law (Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63, cited with approval in Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 269, 23 N. E. 372, 16 Am. St. Rep. 753) he may not. Attempting, a few days after the sale transaction had beep completed, and after title had passed, to return the horse to the defendants, and meeting with repulse, he proved no rescission by right or by agreement of parties by testifying by one of his witnesses that a month later he left it at the stables of the defendants, but to whom or upon what terms does not appear. He may have proved a warranty and a breach, giving the most favorable consideration to his cause and the evidence; but upon what conceivable theory he recovered the full price paid for the horse in this his action to recover damages for the breach of a warranty is not disclosed by the record nor by the brief of his counsel. The case must therefore be sent back for a new trial. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. GILDERSLEEVE, P. J., concurs.