Smith v. Hunt

• Decision Date: 05 June 1912
• Docket Number: 7,652
• Parties: SMITH ET AL. v. HUNT
• Court: Indiana Appellate Court

98 N.E. 841

50 Ind.App. 592

SMITH ET AL. v. HUNT

No. 7,652

Court of Appeals of Indiana

June 5, 1912

From Miami Circuit Court; Joseph N. Tillett, Judge.

Action by Walter D. Hunt against Marshall Smith and another. From a judgment for plaintiff, the defendants appeal.

Reversed.

Charles A. Cole, Albert H. Cole, Hillis & Bradfield, and Charles P. Baldwin, for appellants.

David E. Rhodes and John F. Lawrence, for appellee.

OPINION

LAIRY, J.

Appellee brought this action in the court below to recover damages from appellants for the breach of a parol warranty alleged to have been made by them in the sale or trade of a stallion. From the averments of the complaint it appears that appellee was the owner of a stock of goods of the value of $ 2,500; that some time in January, 1909, he entered into a contract with appellants, whereby he agreed to deliver to them said stock of merchandise in exchange for a certain stallion, named Charlie, valued in the trade at $ 1,200, an automobile, and $ 500 in cash, and said trade was fully consummated by the delivery of the stock of goods to appellants and by the acceptance of the personal property and cash in exchange therefor by appellee. The complaint then charges that appellants at the time of the trade, and as a part of the consideration therefor, warranted that the horse Charlie was suitable and fit for breeding purposes; it also alleges a breach of this warranty and seeks to recover damages therefor.

The action of the court in overruling the demurrer to the complaint is assigned as error, but this assignment is waived by a failure to argue it or to cite authorities in its support.

There was a trial by jury and a verdict and judgment in favor of appellee. Appellants' motion for a new trial was overruled, and this is assigned as error.

It is conceded by all parties to this appeal that the complaint counts on the breach of a parol warranty of the stallion. Appellants claim that the evidence in this case shows without dispute that the contract for the sale of the stallion was in writing, and that it contains no warranty as to his breeding qualities. If this position of appellants is correct, the verdict is not sustained by the evidence and the judgment cannot stand. It is claimed, however, on behalf of appellee that the contract under which the exchange of the property was made, rested wholly in parol and may be proved by parol testimony. This presents the first question for decision.

On the question under consideration, appellee testified as follows: "There was no written contract entered into for the sale of the horse. I prepared a bill of sale, sent it to Mr. Smith and asked him to sign it and return it to me. I got it at least ten days after the sale was made; after I came into possession of the horse and Mr Smith came into possession of his stock of goods. I took the paper to Amboy with me several days after the trade had been consummated and asked Smith to have it signed and attested by a notary and he told me there was no notary in town and I told him if he could not have it attested by a notary to sign it in the presence of witnesses and return it to me. In a few days I received the document. The bill of sale bears the date of the sale. I had him to sign it to get something to show that I had a clear title to the horse, which I did not have at the time, although I had possession of the horse. The trade was closed on the 14th day of January. The bill of sale was not handed to Smith until after the horse was delivered to me."

The witness then identified the following bill of sale as given for the horse in controversy in this action, and appellants introduced it in evidence:

"Bill of Sale. I, the undersigned, Marshall Smith, of Amboy, Indiana, owner of the Percheron Stallion 'Charlie', 9402, for the sum of twelve hundred (1200) dollars worth of mdse. for the receipt of which is hereby acknowledged, have bargained and traded and by these presents do bargain, trade, transfer and convey the said Percheron Stallion, 'Charlie', 9402, to Walter D. Hunt of Gas City, Indiana, and I do for myself and my heirs and assigns warrant and defend the title to said Stallion to be free and clear from any and all incumbrances of every description what-so-ever, and I also warrant the said grey Stallion traded to the said Walter D. Hunt to be the same Stallion as the Stallion described as Charlie, 9402, in a certificate of pedigree issued by the American Percheron Registry Association, dated at LaGrange, Cook County, Illinois, the 27th day of September, 1906. Dated this 14th day of January, 1909. Marshall Smith."

After the bill of sale was introduced in evidence, appellants objected to the introduction of any testimony tending to show a parol warranty of the horse, on the ground that the contract for the sale of the horse was in writing, and contained certain specified warranties, and that parol evidence was inadmissible to vary the terms of this written contract. It is well settled that where a contract is reduced to writing by the parties, all prior and contemporaneous parol negotiations are merged in this written contract. The writing is the repository of the entire agreement between the parties, and cannot be added to nor varied by parol evidence. Reynolds v. Louisville, etc., R. Co. (1896), 143 Ind. 579, 40 N.E. 410; Shirk v. Mitchell (1894), 137 Ind. 185, 36 N.E. 850; Diven v. Johnson (1889), 117 Ind. 512, 20 N.E. 428, 3 L.R.A. 308.

If the bill of sale introduced in evidence is a written contract within the meaning of the rule above recited, it must necessarily follow that the court erred in admitting testimony as to a parol warranty entered into prior to the execution of the bill of sale; but if the circumstances under which the bill of sale was executed were such as to show that it was not intended to embody the terms and conditions of the contract between the parties by which they were to be governed and controlled in carrying out their contract, then the rule would not apply. A contract has been defined to be an agreement between two or more persons, based on a sufficient consideration, to do or to refrain from doing some particular thing. By the terms of a contract, whether written or in parol, the parties become obligated to do or to perform the acts stipulated on their part to be performed, and these obligations remain in force on the parties to the contract until the contract has been terminated in some manner recognized by law. When the contract has been terminated, both parties are thereby released from all obligations thereunder. One of the recognized means of terminating a contract is by performance, and when a contract has been fully performed, all parties are released from any further obligations thereunder, and the contract ceases to exist.

In this case it appears from the evidence that a contract of some kind was entered into between the parties in reference to an exchange of personal property. In pursuance of this contract, appellee delivered to appellants a stock of goods, and appellants paid appellee $ 500 in cash, and delivered to him an automobile and the horse. The contract was thus fully performed on both sides, and was thereby terminated. No written evidence of the contract existed at or before the time of its termination. All of the acts done by both parties, in carrying out the contract in question, were done in pursuance of a contract, the terms of which at the time rested entirely in parol. The bill of sale introduced in evidence was executed at a time after the contract had been terminated, and when there was no contract between the parties which could be merged into a written instrument. It was not, therefore, a written contract. At most it could be nothing more than a statement in writing of the terms of a preexisting parol contract, which had been fully performed and terminated. If this bill of sale had been executed while the contract was still subsisting, and before it had been terminated by complete performance, it would then have constituted the sole repository of the agreements between the parties, and would have been the only evidence of the terms of the contract.

The bill of sale introduced in evidence was prepared by appellee and signed by appellant Smith. It contained a recital of the terms of the preexisting verbal contract, as the parties at the time understood and remembered them. It was some evidence of...