24 Cal. 458, Miller v. Van Tassel

Citation:24 Cal. 458
Opinion Judge:RHODES, Judge
Attorney:W. S. Long, for Appellant. W. H. Rhodes, for Respondent.
Judge Panel:JUDGES: Rhodes, J.
Case Date:April 01, 1864
Court:Supreme Court of California

Page 458

24 Cal. 458




Supreme Court of California

April, 1864

Page 459

[Syllabus Material]

Page 460

[Syllabus Material]

Page 461

Appeal from the District Court, Fifteenth Judicial District, Tehama County.

The record of the Circuit Court of the United States, spoken of in the opinion of the Court, contained a certified copy of a summons in an action brought by the United States against Miller to recover possession of the jack, proof of service on Miller, his voluntary surrender of the property, and a dismissal of the action by the Attorney for the United States.

The plaintiff recovered judgment in the Court below, and the defendant appealed.

The following is a copy of the bill of sale of the jack:

" This is to certify that I have sold to William Miller my brown Maltese Jack, for $ 1,000.

" N. Van Tassel."


W. S. Long, for Appellant.

Defendant offered to prove that Miller expressly waived a warranty of title, and agreed to take the jack at his own risk; which testimony was rejected by the Court. For our right to have introduced such testimony, I cannot do better than to call the attention of the Court to Mr. Parson's very able work on Contracts, Vol. 1, pages 456, 457, Chap. V, and the notes referred to.

There is no clause of warranty in the instrument of writing, and in fact nothing more or less than a simple statement that he had sold the jack. If there had been a warranty in the writing, then the Court would properly have excluded the evidence. But as there was none, we think we had as much right to show the terms of the sale as if the sale had been made verbally.

W. H. Rhodes, for Respondent.

The evidence sought to be introduced was inadmissible for any purpose, because it would vary, contradict, and add to the written bill of sale, and parol proof cannot be introduced for any such purpose. The rule is too well settled to admit of doubt that the sale and delivery of personal property by one in possession thereof, carries with it a warranty of the right to sell, and of the title.

Mr. Parsons, in his treatise on Cont. Vol. I, page 456, thus states the rule: " And in this country it seems to be now well settled by adjudications in many of our States, that the seller of a chattel, if in possession, warrants by implication that it is his own, and is answerable to the purchaser if it be taken from him by onewho has a better title than the seller, whether the seller knew the defect of his title or not, and whether he did or did not make a distinct affirmation of his title." In support of this view, the learned author cites almost innumerable authorities. (Vide, also Hill on Sales, 292, § 38, and authorities to same effect.)

There having been, therefore, a warranty of title, as evidenced by the bill of sale, the question arises, can the vendor now prove by parol that there was no warranty of title?

This proof would add a clause to the written contract, and contradict its written terms by a disaffirmance of the legal effect of the instrument, which testimony is inadmissible.

" Where there is a bill of sale, or a written agreement respecting a sale, no action can be maintained upon a mere parol warranty," that is, of the quality or quantity of the article sold, and this upon the principle contended for, that the written instrument contains all the contract. Thus in the case of Mumford v. McPherson, 1 John. 414, Mr. Justice Thompson delivered the opinion of the Court: " The warranty alleged to have been made is, that the ship was completely copper fastened...

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