Liebke v. Methudy
| Citation | 18 Mo.App. 143 |
| Parties | C. F. LIEBKE ET AL., Respondents, v. L. METHUDY ET AL., Appellants. |
| Decision Date | 02 June 1885 |
| Court | Missouri Court of Appeals |
APPEAL from St. Louis Circuit Court.--THAYER, J.
Affirmed.
KEHR & TITTMAN, for the appellants: The court below erred in permitting the respondents to introduce any evidence tending to prove the existence of the two warranties claimed to have been made by appellants, not expressed in their instrument of writing. Parol evidence to prove either warranty was, in the face of the written instrument, wholly incompetent, because even where a simple bill of sale is given, merely describing the property sold and receipting the price, or a contract of sale is made, but containing no warranty at all, the purchaser can not prove representations and assertions amounting to warranties, made previous to or contemporaneous with the written instrument. Jolliffe v. Collins, 21 Mo. 338; Peers v. Davis, adm., 29 Mo. 184; Van Ostrand v. Reed, 1 Wend. 432; Reed v. Wood, 9 Vt. 285; Green v. Clark, 35 Vt. 577; Dean v. Mason, 4 Conn. 431-2; Munford v McPherson, 1 Johns. 414; Galpin v. Atwater, 29 Conn. 93; Hanger v. Evans, 38 Ark. 338; Lamb v Crafts, 12 Met. 353; Mast v. Pierce, 58 Iowa 579; Randall v. Rhodes, 1 Curtis (U. S.) 90; Kain v. Old, 2 B. & C. 627; Lowber v. Connit, 36 Wis. 176; Frost v. Blanchard, 97 Mass. 155. And if a bill of sale containing a written warranty, or 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. An express warranty legally and necessarily excludes all other warranties. Hanger v. Evans, 38 Ark. 338; Shepherd v. Gilfroy, 46 Iowa 193; Mullain v. Thomas, 43 Conn. 252; Buechtel v. Mason Lumber Co., 1 Flippin (U. S.) 640; Wren v. Wardlaw, Minor's Rep. 363; Pender v. Fobes, 1 Dev. & Bat. 250; Smith v. Williams, 1 Murphy 426; Lamer v. Auld, 1 Murphy 138; Dunning v. Foster, 42 N.H. 165; McCraw v. Fletcher, 35 Mich. 104; Sparks v. Messick, 65 N. C.; Budd v. Fanmann, 8 Bing. 52, per Tindal, C. J.; Osborn v. Nicholson, 13 Wall. (U. S.) 655. Duff v. Ivy, 3 Stew. (Ala.) 144; Mast v. Pierce, 58 Iowa 579. Where the written contract purports on its face to be a memorial of the transaction, it supersedes all prior negotiations and agreements, and that oral testimony will not be admitted of prior or contemporaneous promises on a subject which is so closely connected with the principal transaction, with respect to which the parties are contracting, as to be part and parcel of the transaction itself, without the adjustment of which the parties can not be considered as having finished their negotiations and finally concluded a contract. Naunberg v. Young, 44 N.J. Law 331; Hei v. Heller, 54 Wis. 415; Hubbard v. Marshal, 50 Wis. 322; Green v. Casey, 70 Ala. 417; Dutton v. Gerrish, 9 Cush. 89.
G. M. STEWART, for the respondents: The paper in question was one of the " " " " contemporaneous writings relating to the same subject-matter; " without it the contract of the parties as made cannot be fully shown. Liebke v. Methudy, 14 Mo.App. 65; Chapin v. Dobson, 78 N.Y. 74; Phelps v. Whittaker, 37 Mich. 72; Richards v. Fuller, 37 Mich. 161; R. R. Co. v. Walsh, 85 Ill. 58; Doulin v. Dæ gling, 80 Ill. 608; Greenleaf Ev., 9th Ed., § 283; Greenleaf Red. Ed., § 284 a; Wallis v. Little, C. B., N. S. 368; Wake v. Harop, 1 Hurdston & Coltman 200; Life Ass'n v. Gravin, 60 Mo. 388; Moss v. Green, 41 Mo. 309.
This action is brought to recover damages for a breach of warranty in the sale of logs. The plaintiffs' petition states that, at the time of the purchase and for the consideration paid, " defendants guaranteed that there were then in Reelfoot creek and its tributaries, at least 520 walnut logs, which would produce an average of three hundred and eighty-two feet of sound lumber per log, and fifty logs on Paw Paw creek of the same dimensions."
The petition then avers that plaintiffs paid the consideration of the sale, but that the logs purchased of defendants in Reelfoot creek and its tributaries did not produce an average of 382 feet of sound lumber to the log, but, on the contrary, they produced on an average only 222 feet of lumber per log, and the lumber so produced was not sound, but was worm-eaten, decayed, and otherwise defective, and of an inferior quality, in consequence whereof plaintiffs say they were damaged in the sum of fourteen hundred dollars. The petition contained a further allegation as to the breach of warranty of plaintiffs' title, in regard to the logs in Paw Paw creek, which it is unnecessary to consider, as the court upon defendants' request took that branch of the case from the jury, there being no evidence to support it.
Defendants' answer was a general denial. The cause was tried by a jury, who, under the instructions of the court, found for plaintiffs, and assessed their damages at $291.65.
Upon a former trial of the cause the trial court nonsuited the plaintiffs, but its action in so doing was reversed by this court. 14 Mo.App. 65.
The writtten contract between the parties, which was before the court then, and is before the court now, is as follows:
ST. LOUIS, October 15, 1878.
Messrs. Liebke & Schrage,
Bought of Methudy & Meyer, Lumber and Commission Merchants, No. 202 South Fourth St.,--
| 520 walnut logs | $2750.00 |
| 50 poplar logs | 0000.00 |
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 the 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.
The main contention at the former trial was whether the plaintiffs should be permitted to give oral testimony of representations which they claimed were made to them in regard to the size and quality of the logs, antecedent and cotemporaneously with the date of the sale and the execution of the above memoranda.
This guaranty plaintiffs claimed by virtue of the exhibition to them by one of defendants, of a certain scale bill, purporting to give the measurement of the logs, and the representations of one of defendants, made to them that the logs would hold out according to the measurement of the scale bill.
When the case was here before, this court said:
The petition stated that the logs fell far short of the dimensions guaranteed, that the average was only 222 feet instead of 382 per log. The trial court at the former hearing did not permit plaintiffs to prove this deficiency, holding that no guaranty could be considered which was not contained in the writings delivered by defendant to plaintiff. Upon this showing when the case was here before this court held that the testimony in regard to defendants' representations, and the scale bill, and that the yield of the logs fell far short of such scale bill, should have been admitted, and after citing Phillips v. Whittaker (37 Mich. 72) and Richards v. Fuller (37 Mich. 161), in its support, said: ...
To continue reading
Request your trial