McQuaid v. Ross

• Decision Date: 14 October 1890
• Citation: 46 N.W. 892,77 Wis. 470
• Parties: MCQUAID v. ROSS ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 470

46 N.W. 892

MCQUAID

v.ROSS ET AL.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, La Fayette county.

Orton & Osborn and J. M. Smith, for appellants.

Whether, when a written contract of sale contains an express warranty, another express warranty can be proved by parol, see Whitmore v. Iron Co., 2 Allen, 58;Dutton v. Gerrish, 9 Cush. 89;Boardman v. Spooner, 13 Allen, 361;Frost v. Blanchard, 97 Mass. 155; Chandler v. Thompson, 30 Fed. Rep. 46; Bottle, etc., Co. v. Gunther, 31 Fed. Rep. 210; Nichols v. Wyman, 71 Iowa, 160, 32 N. W. Rep. 258;Mast v. Pearce, 58 Iowa, 579, 8 N. W. Rep. 632, and 12 N. W. Rep. 597;Shepherd v. Gilroy, 46 Iowa, 193.

Rose & Hooper, for respondent.

TAYLOR, J.

This action was brought by the respondent against the appellants to recover damages on a contract for the sale by them to the respondent of a thoroughbred Durham bull. The plaintiff in his complaint, in the first count thereof, seeks to recover damages on an implied warranty that the bull was not sterile, and incompetent, from latent defects, to beget calves or generate his kind, and upon allegations that said bull was so sterile and incompetent, and so entirely worthless for the purposes for which he was bought by the plaintiff, by reason whereof the plaintiffhad been greatly damaged. In the second count of the plaintiff's complaint, he alleges that in consideration that the plaintiff would purchase said bull and pay the defendants therefor the sum of $125, the said “defendants warranted said bull to be of a superior pedigree, and to be in good condition, and fit and suitable for the purposes for which he was purchased by the plaintiff, and that, relying on such warranty, he purchased said bull, and paid the defendants therefor the sum of $125, and that, after having fairly and sufficiently tested said bull, it was ascertained that he was sterile and entirely incompetent to beget calves, and worthless for the purpose for which he was purchased, and upon ascertaining that fact the plaintiff returned the said bull to the respondents, and demanded repayment of the sum paid to them for him, and reasonable damages, which the respondents refused to pay.” On the trial in the circuit court, the learned circuit judge decided that the plaintiff could not recover upon the first cause of action, viz., upon an implied warranty that the bull was in all respects fit, suitable, and competent to perform the service for which he was purchased. And as to the second count, or cause of action, which charged that the respondents expressly warranted the bull fit and suitable for the purposes for which he was purchased by the plaintiff, the learned circuit judge submitted the case to the jury upon the evidence, and the jury found in favor of the plaintiff, and assessed his damages at $192.35, being the purchase price and interest thereon. On the trial the plaintiff introduced, as evidence of the sale to him of the bull and his purchase thereof, a writing signed by the defendants. This writing first stated at length the pedigree of the said bull, and then closes as follows: “I have this day sold the above-named bull, ‘Star of Fairview,’ to P. F. McQuaid, of Darlington, Wis. I hereby certify the above pedigree to be true. Dated June 30, 1888. [Signed] J. J. Ross & SONS.” After the introduction of this contract of sale, the defendants objected to the introduction of any evidence on the part of the plaintiff as to what took place at the time of the sale, or before the sale, for the purpose of showing an express warranty of the bull, for the reason that “the written contract conclusively proves the final contract between the parties concerning the qualities of the animal, and that parol evidence is inadmissible to change, modify, or add to the same.” This objection was overruled by the court, and the defendants duly excepted, and...