Lower v. Hickman

• Decision Date: 12 November 1906
• Citation: Lower v. Hickman, 97 S.W. 681, 80 Ark. 505 (Ark. 1906)
• Parties: LOWER et al. v. HICKMAN.
• Court: Arkansas Supreme Court

Page 681

97 S.W. 681

LOWER et al. v.HICKMAN.

Supreme Court of Arkansas.

November 12, 1906.

Appeal from Circuit Court, Saline County; Alexander M. Duffie, Judge.

Action by W. H. Lower and another against J. O. Hickman.From a judgment in favor of defendant, plaintiffs appeal.Affirmed.

D. M. Cloud, J. W. Westbrook, and Mehaffy & Armstead, for appellants.

HILL, C. J.

An examination of the rejected evidence, the memorandum alleged to have been signed by Hickman and the final contract signed by Lower and Gann, will show that two questions have arisen: (1) Was it competent to prove an oral warranty of the capacity of the sawmill?(2) Was it competent to prove that the words "sawmill cap. 20,000" on the memorandum meant a warranty that the sawmill had a capacity to cut 20,000 feet of lumber per day?

1.A warranty is so clearly a part of a sale that, where the sale is evidenced by a written instrument, it is incompetent to ingraft upon it a warranty proved by parol.The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money, or part of a transaction, where there are other parts of it other than warranties.It may be a complete contract, signed by both parties and comprehensive and exhaustive in detail, and contain many mutual agreements, terms, and stipulations, or it may be a simple bill of sale, or sale note evidencing the sale.The principle is the same in any of these transactions, and oral evidence of a warranty is almost universally excluded when a complete written instrument evidences the sale.It is not important that the instrument be signed by both parties; for acceptance of the other may be equally binding, and the principle here invoked is as often applied to unilateral as to bilateral instruments.For the statement of the principles involved, and the many applications thereof, see4 Wigmore on Evidence, § 2434, and review in notes; 1 Elliott on Ev.§ 580;Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837;Hanger v. Evins, 38 Ark. 339;Hooper v. Chism, 13 Ark. 496;Reed v. Wood, 9 Vt. 285;Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380;Diebold Safe & Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035, 28 L. R. A. 53;Am. Mfg. Co. v. Klarquist, 47 Minn. 344, 50 N. W. 243;Miller v. Municipal E. L. & P. Co., 133 Mo. 205, 34 S. W. 585;McCray Ref., etc., Co. v. Woods, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599;Mast v. Pearce, 58 Iowa, 579, 8 N. W. 632, 12 N. W. 597, 43 Am. Rep. 125;Grand Ave. Hotel v. Wharton, 79 Fed. 45, 24 C. C. A. 441;Buckstaff v. Russell, 79 Fed. 611, 25 C. C. A. 129;Galpin v. Atwater, 29 Conn. 93.The application of these principles to the facts at bar cannot be better stated than in a similar case by Mr. Chief Justice Fuller: "Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this instance complete and perfect on its face, without ambiguity and embracing the whole subject-matter, it obviously could not be determined to be less comprehensive than it was."And this conclusion is unaffected by the fact that it did not allude to the capacity of the particular machine.To hold that mere silence opened the door to parol evidence in that regard would be to beg the whole question.Seitz v. Brewers' Ref. Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837.The evidence attempting to prove by parol a warranty was properly rejected.

2.According to the evidence of Lower and Gann, Hickman made them a verbal proposition and put into writing a statement of what constituted the mill output, and at the bottom of this list of property is added: "Sawmill cap. 20,000."This meant, according to their testimony, that the sawmill had a capacity to cut 20,000 feet of lumber per day.The contract signed by Lower and Gann shows it is a complete contract between the parties, embracing...