Ruff v. Jarrett

• Decision Date: 31 January 1880
• Citation: 1980 WL 121824,94 Ill. 475
• Parties: JOHN RUFF et al.v.JAMES JARRETT.
• Court: Illinois Supreme Court

94 Ill. 475

1980 WL 121824 (Ill.)

JOHN RUFF et al.

v.JAMES JARRETT.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE1. PAROL EVIDENCE-- of warranty, when a bill of sale is given.

Where a bill of sale of a lot of ice does not show to whom the sale was made, the quantity sold, nor the price per ton, but simply that the ice was sold by the vendor, describing its location and stating that it was to be removed between the date of the instrument and the first of April following, it will not constitute a contract between the parties without the aid of extrinsic evidence, and parol evidence is admissible to show that the sale was made with a warranty, on a plea of failure of consideration to an action on the note given for the price.

2. SAME-- to show failure of consideration.

In a suit upon a promissory note given for the price of personal property purchased, parol evidence of a warranty of the property and a breach of the warranty is admissible, and this has never been held to vary, contradict or change the terms of the note, which is but a part of the agreement.

3. FRAUDULENT WARRANTY-- statement of fact that vendor ought to have known to be false.

If the vendor of a lot of ice makes a positive assertion to the purchaser that he had measured the ice and there was a specified quantity, and the statement was untrue, the vendor must have known its falsity, or at least was bound to know, and if the purchaser relied upon the truth of the assertion when it was untrue, and purchased in consequence thereof and suffers damages thereby, he will be entitled to recover damages of the vendor either in a suit against the vendor, or in a suit by the vendor to recover the purchase money.

4. A warranty may be false, and not only false but known to be so by the vendor, and when thus made, it is denominated a fraudulent warranty, and in such a case it is error to so instruct the jury as to make the whole case turn upon the question of fraud, excluding all consideration of a warranty.

5. FRAUD-- how far purchaser must rely on fraudulent statements.

In an action upon a note given for ice purchased, where fraud and a breach of warranty are set up in defence, it is not correct to instruct the jury that even if the statements made were untrue as to the quantity of the ice, the purchaser could not complain unless he relied solely on such statements as being true in making the purchase. It is sufficient if he would not have made the purchase but for such statements, though he may in part have relied on other facts.

6. EVIDENCE-- degree of, required in civil suit.

The jury in a civil suit are only required to believe a state of fact from a preponderance of the evidence, and it is error to instruct them that they must be satisfied by a preponderance of the evidence, as imposing a higher degree of proof than the law requires.

7. INSTRUCTIONS-- when the evidence is conflicting.

Where the evidence is conflicting as to the controverted facts and issues in a case, it is essential that the several instructions should be accarate.

APPEAL from the Appellate Court for the Third District; the Hon. CHAUNCEY L. HIGBEE, presiding Justice, and the Hon. OLIVER L. DAVIS and Hon. LYMAN LACEY, Justices.

This was an action of assumpsit, brought by James Jarrett against John Ruff and others, upon a promissory note. The case was tried in the circuit court of Adams county, the Hon. JOSEPH SHOPE, judge, presiding, and taken by appeal to the Appellate Court.

Messrs. ARNTZEN & MOORE, for the appellants.

Messrs. MARSH & MCFADDEN, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It appears that Jarrett brought an action of assumpsit against Ruff and others on a promissory note for $3340. Defendants filed the plea of the general issue and pleas of partial failure of the consideration, and warranty of the quantity of ice for which the note was given, and that the warranty had failed, whereby they had suffered loss. A trial was had by the court and a jury, which resulted in a verdict in favor of the plaintiff. After overruling a motion for a new trial the court rendered a judgment on the verdict against defendants, and they appealed to the Appellate Court for the Third District. On a trial in that court the judgment of the circuit court was affirmed, and the case is brought to this court on appeal.

It is urged, as a ground of reversal, that the circuit court erred in giving instructions for the plaintiff. The first instruction in forms the jury that the written bill of sale signed by appellee constitutes the contract between the parties, and that there was no warranty, nor could the jury consider any evidence outside of it as to the question of a warranty, but only as to the question of whether the representations made as to quantity and quality of the ice were fraudulent.

The bill of sale does not say to whom the sale was made, the quantity sold, nor the price per ton, but simply the ice was sold by appellee, describing its location, that it was sold for $3340, and that it was to be removed between the date of the instrument and the first of April, 1878. This can not be regarded as a contract between the parties without the aid of extrinsic evidence. If evidence may be introduced to prove who was the purchaser and to give effect to this bill of sale, then what reason can there be for not permitting evidence of a warranty? Suppose this incomplete instrument had not been produced in evidence, and the same proof had been made in regard to the guaranty or warranty, can it be contended that the evidence would not have been admissible? If such is not the rule, then a person purchasing and relying on a warranty would never be protected by it if he gave his note or took a bill of sale or particulars in writing, unless it contained a written warranty. We have never known such a rule contended for, nor are we referred to any such authority. The case of Shackelton v. Lawrence, 65 Ill. 175, was a suit on a note, and the defence was a breach of a warranty, pleaded as a failure of consideration, and no such objection was taken.

The case of Reed v. Hastings, 61 Ill. 266, was also on a note, and the defence of a warranty was allowed without objection. The case of McClure v. Williams, 65 Ill. 390, was also on a promissory note, and the...