Randall v. Rhodes

CURTIS, Circuit Justice. There is no doubt that a representation, intended by the vendól-as a warranty, and acted on as such by tbe vendee, amounts in law to a warranty; and it is also well settled that such representation so operates, although made during the treaty for a sale, and some days before the sale was finally agreed upon, if it appear that it was not withdrawn, and the contract of sale did not exclude it from its terms. But the question now presented is, .whether the representation relied on was not excluded from the contract of sale, so as to form no part thereof. It is not contained in the written memorandum, signed.by the defendants. Now, the general rule is that, when negotiations have terminated in a written contract, the parties thereby tacitly affirm that such writing contains the whole contract, and no new terms are allowed to be added to it by extraneous evidence. But -it is argued that this memorandum is not the written contract of sale; that it contains only:a statement of the fact that a sale has been made, and á description of the thing sold, the-price and terms of credit. But this is all that is necessary to make a complete contract of sale; and to assume that any thing more existed, and allow it to be shown, would viólate the rule above stated. It is true that, in Bradford v. Manly, 13 Mass. 139, and Hastings v. Lovering, 2 Pick. 214, it was held, that a bill of parcels was -not the contract of sale, it being intended, as the court says, in .the first Of those cases, only as a receipt for the price, and not to show the terms of the bargain. But here the writing could not have been intended for a receipt, and must have been intended to set forth, what it does set forth, a contract of sale; ;and, if so, it must be taken to embrace the whole contract, and consequently a warranty was not one of its terms. It is argued that the reference to Brown, contained in the contract, may be sufficient to incorporate into it the letters which he wrote in the course of his. agency, .and which led to the making of the contract. These let [241] ters might hare been so referred to as to make their contents part of the contract; but to have this effect, the contract must show that such was the intention of the parties. This intention does not appear by the reference to Brown’s agency. The natural meaning of that reference is, only that Brown was the agent through whom the contract of sale, shown by the writing, was negotiated. There is nothing to show that the parties agreed to make all he had done and said part of the contract. I am of opinion that the plaintiffs are not entitled to recover; and, unless they elect to become nonsuit, the jury will be directed accordingly. See Lamb v. Crafts, 12 Metc. [Mass.] 354. The district judge concurred in the opinion, and the plaintiffs became nonsuit.