Liebke v. Methudy

• Decision Date: 29 May 1883
• Citation: 14 Mo.App. 65
• Parties: CHARLES F. LIEBKE ET AL., Plaintiffs in Error v. L. METHUDY ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

14 Mo.App. 65

CHARLES F. LIEBKE ET AL., Plaintiffs in Error

v.L. METHUDY ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

May 29, 1883.

ERROR to the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

G. M. STEWART, for the plaintiffs in error: The scale bill by which the plaintiffs bought the logs in question became a part of the contract of sale, so that defendants are bound by it, although not referred to in the memorandum or bill of sale.-- Chapin v. Dobson, 78 N. Y. 74; Phelps v. Whitaker, 37 Mich. 72; Richards v. Fuller, 37 Mich. 161; Railroad Co. v. Walsh, 85 Ill. 58; Doulin v. Daegling, 80 Ill. 608; Greenleaf Ev. (9th ed.), sect. 283; Greenleaf (Redf. ed.), sect. 284 a; Wallis v. Little, C. B. (N. S.) 368; Wake v. Harop, 1 Hurl. & Colt. 200; Life Assn. v. Draven, 60 Mo. 388; Moss v. Green, 41 Mo. 389; Benj. on Sales (1st Am. ed.), sect. 203.

KEHR & TITTMANN, for the defendants in error: Oral testimony to vary the terms of a written contract is inadmissible.-- Lazear v. National Union Bank, 52 Md. 79; Story on Sales (4th ed.), p. 426, sect. 360; New Lindell Hotel Co. v. Bailey, 3 Mo. App. 598. And if a written warranty is given by vendor to vendee, the latter can not recover for the breach of an additional warranty. The written warranty is conclusively presumed to embrace all the warranty that was made.-- Shepherd v. Gilfroy, 46 Iowa, 193; Mullain v. Thomas, 43 Conn. 252; Buechtel v. Mason Lumber Co., 1 Flip. 640. Thus “the warranty of title expressed, is an exclusion of all other warranties not expressed and conclusive, that the defendant will not warrant the quality or soundness.”-- Wren v. Wardlaw, Minor, 363; Pender v. Fobes, 1 Dev. & B. 250; Smith v. Williams, 1 Murph. 426; cited and approved in Pearson v. Carson, 69 Mo. 550. In the sale of these logs, the rule caveat emptor applies. There was no implied warranty of quality or of value.-- Lindsay v. Davis, 30 Mo. 450; Add. on Con., sect. 616, p. 211. Where there is an express written warranty, there can be no recovery on an implied warranty. The law will not imply what is not expressed in a written instrument. There is no room for an implied warranty in such a case.-- Lanier v. Auld, 1 Murph. 138; Dunning v. Foster, 42 N. H. 165; McGraw v. Fletcher, 35 Mich. 104; Sparks v. Messick, 65 N. C. See, also, Salem Rubber Co. v. Adams, 23 Pick. 256; Rose v. Hurley, 39 Ind. 81; McCure v. Jeffries, 8 Ind. 83.

LEWIS, P. J., delivered the opinion of the court.

The plaintiffs, as purchasers from the defendants of a lot of walnut logs which were lying in Reelfoot Creek, in the State of Tennessee, sue for breaches of the contract and guaranty embodied in the sale. The court sustained a demurrer to the plaintiffs' evidence.

The testimony tended to show that Meyer, a member of the defendant firm, proposed to Liebke, one of the plaintiff partners, in the city of St. Louis, to sell to the plaintiffs a lot of five hundred and twenty walnut logs, then lying in Reelfoot Creek and its tributaries, and at the same time handed to Liebke a scale bill, showing separately the length and diameter, in feet and inches, of every log. Liebke and Meyer went over the list together and calculated, by rules familiar to lumber dealers, the quantity of lumber that could be sawed out from each log, and the average number of feet per log that the whole lot of five hundred and twenty would yield. This average was three hundred and eighty-two feet. Liebke kept the paper for several days, giving it a careful examination, and, “on the strength of that scale bill,” as he expresses it, agreed to pay $2,750 for the entire lot. The following papers were thereupon delivered by defendants to the plaintiffs:--

ST. LOUIS, October, 15, 1878.

Messrs. Liebke & Schrage,

Bought of Methudy and Meyer,

Lumber Commission Merchants,

No. 202 South Fourth Street.

520 Walnut Logs

$2,750 00

50 Poplar Logs

0,000 00

Received notes, sixty and ninety days, and four months from date in payment of above.

METHUDY & MEYER.

“We guarantee the above amount of walnut logs to be in Reelfoot Creek or its tributaries, also our title to same, and, also, that same are free of all incumbrances, excepting a claim which T. Sowell will have of $50 when logs are delivered below Dyersburg bridge.

METHUDY & MEYER.”

“Five hundred and twenty logs being guaranteed in creeks, if more are there, this is to transfer our title to them also.

METHUDY & MEYER.”

And also the following as to the logs in Pawpaw Creek:--

“ST. LOUIS, October 21st, 1878.

Messrs. Liebke & Schrage:

In our late sale to you of the Reelfoot walnut, we include all the Pawpaw walnut in the creek (about 50 logs) by you paying the stumpage and giving us hereafter such amount as you may think just and right.

METHUDY & MEYER.”

The notes given were paid by the plaintiffs at maturity. The petition avers that the logs fell far short of the dimensions guaranteed by the defendants, so that their average yield of lumber was only two hundred and twenty-two instead of three hundred and eighty-two feet, per log. When the plaintiffs attempted to prove the deficiency, as realized after the purchase, the testimony was excluded, and the plaintiffs excepted. The learned judge held that the case was one in which all previous negotiations and undertakings were merged in the written contract, and that no guarantee could be considered which was not contained in the writings delivered by the defendants to the plaintiffs. In these writings nothing was said about the dimensions, or lumber yielding capacity of the logs.

There is a class of cases, exemplified by a large number of adjudications, in which it is held that the rule excluding parol testimony to vary the terms of a written understanding does not apply to a collateral obligation which involves no departure from the terms of the writing, and the proof of which would show what was the entire contract, whereof only a part was reduced to writing. The courts say that, where the writing does not on its face purport to show the whole undertaking, parol testimony is admissible to supply omitted terms. But it is not always easy to reconcile the various processes which discriminate between this class of cases, and that wherein it is assumed that the writing contains the entire contract.

Thus, in Van Ostrand v. Reed (1 Wend. 424), the defendants sold to the plaintiffs certain exclusive rights in a patented threshing machine, and delivered a bill of sale describing the machine, but containing no covenants. The plaintiffs attempted to show that, in making the sale, the defendants represented and guaranteed that the machine was a new and useful improvement, which was untrue. This attempt was forbidden; the court holding to the presumption of law that the writing contained the whole contract. Yet, in Chapin v. Dobson (78 N. Y. 74), the plaintiffs gave to the defendant an agreement in writing, describing in detail certain machines which they were to furnish, and setting forth the method of delivery and the terms of payment; whereupon the defendant was permitted to show that, before the delivery of this writing, there was a parol agreement or guaranty, “that the machines should be so made as to work well, or satisfactorily, or, in case of failure, that they should be taken back and not paid for.” We are at a loss for any test by which it may be determined that the instrument in...