Willard v. Ostrander

• Decision Date: 06 June 1891
• Parties: WILLARD v. OSTRANDER.
• Court: Kansas Supreme Court

26 P. 1017

46 Kan. 591

WILLARD v. OSTRANDER.

Supreme Court of Kansas

June 6, 1891

Syllabus

Where in an action upon a promissory note, the defendant answered that the note sued upon had been given as part of the purchase price of a flock of sheep, and alleged an express warranty of soundness of the sheep included in the purchase and set upon a counter-claim for damages on account of a breach of the warranty, and upon the trial testified in his own behalf that the contract was verbal, but upon further examination it was disclosed that the defendant received a bill of sale from the agent of the plaintiff that did not contain an express warranty for the sheep sold, held, that the oral evidence given in relation to the terms of the contract should have been excluded; that the defendant should not have been permitted to show the representations and statements made previous to the execution of such bill of sale, the presumption of law being that the written instrument contained the whole contract, and should govern unless fraud had been alleged and proved.

Commissioners’ decision. Error from district court, Trego county; S. J. OSBORN, Judge.

J. Warner Mills, H. C. Dillon, Hollister & Hollister, and E. E. Chesney, for plaintiff in error.

Hutchinson & Banks, for defendant in error.

OPINION

GREEN, C.

This was an action upon a promissory note executed by John M. Ostrander on the 2d day of September, 1885, to Frank G. Willard, for the sum of $965 payable in 1 year and 11 months after date, with interest at 12 per cent. per annum. The answer of Ostrander admitted the execution of the note, but alleged that it was given in part payment for a flock of sheep purchased of Willard; that Charles Weeks, the duly-authorized agent of Willard, sold and delivered to Ostrander 2,173 head of sheep, for $5,358, and warranted them to be sound, healthy, and free from all disease; that the entire purchase price for said sheep had been paid, except the note sued upon, and one other note for $965.11, $200 of which had been paid; that the two notes mentioned were secured by a chattel mortgage upon the sheep so sold, but not upon the wool. The answer further alleged that, at the time of the sale and delivery, the sheep were not in a healthy condition, and free from disease, but had a contagious disease known as "mange," "scab," or "itch," all of which was well known to the plaintiff; that, at the time of the purchase, Ostrander was the owner of a large herd of other valuable sheep, and that the sheep purchased of the plaintiff were bought for the purpose of increasing his herd, and to he kept with them on his sheep ranch in Trego county, all of which was made known to the plaintiff; that the defendant relied upon the representations and warranty of the plaintiff, took said sheep into his possession, and upon his ranch, and permitted them to mix indiscriminately with his other sheep, until he discovered their diseased condition; that the disease was communicated to the defendant’s other sheep, by reason of which 300 sheep and lambs belonging to the defendant died, and that he was thereby damaged in the sum of $750: that the remainder of this flock, consisting of 1,873 sheep, were depreciated in value in the sum of 75 cents per head, aggregating $1,404.75; that he had been damaged by labor and expenses necessarily incurred in the care of the sheep, to arrest the spread and to cure the disease, for medicine and costs of dipping 2,700 sheep, $200, making a total loss and damage to the defendant in the sum of $2,354.75. The answer further alleged that the notes were the property of the plaintiff, and that they were fraudulent and void in law, and asked judgment that the plaintiff be ordered to bring each of the notes mentioned into court for cancellation; and also asked judgment for $424, the balance due him for his damages after the cancellation of said notes, with 7 per cent. interest; that, in case the plaintiff, from any cause, should fail to bring the notes into court for cancellation, then that he have judgment against the plaintiff for the sum of $2,354, his damages and costs, with interest on $1,930 from September 2, 1885. A general denial was filed to this answer. The action was tried on the 19th day of September, 1888, in the district court of Trego county. The jury returned a verdict in favor of the defendant, assessing his damages at $2,191.56.

It is claimed that the defendant’s right of recovery, if any, was based exclusively upon a written bill of sale executed by Weeks, as agent for the plaintiff in error, and that the court erred in permitting oral evidence to be introduced in relation to the warranty. It seems from the evidence that negotiations had been pending for some time between Ostrander and Weeks, the agent of the plaintiff in error, for the purchase of the flock of sheep in question. The sale was consummated on the 2d day of September, 1885, and the notes and a chattel mortgage were executed, but the cash payment of $1,500 was not made until the 14th day of September, when the following bill of sale was executed and delivered to the defendant in error: "Know all men by these presents that, in consideration of the sum of five thousand three hundred and fifty-eight ($5,358.00) dollars, the receipt of which is hereby acknowledged, I do grant, sell, transfer, and deliver unto John M. Ostrander, of Wa-Keeney, Kansas, him and his heirs, executors, and administrators and assigns, the following goods and chattels, viz.: Eleven hundred (1,100) grade ewes, known as the ‘Willard ewes; ’ said ewes are all over *** to four years of age, except fifty, which may be over four years of age; also four hundred and thirty-three (433) lambs and six hundred and forty (640) wethers, from one to two years of age,-all of which are free from disease, and in a healthy condition, to the best of my knowledge and belief. To have and to hold, all and singular, the said goods and chattels forever. And the said granttor hereby convenants with the said grantee that he is the lawful agt. of the said goods and chattels; that they are free from all incumbrances; that he has good right to sell the same, as aforesaid; and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever. In witness whereof the said grantor has hereunto set his hand this 14th day of September, A.D. 1885. CHARLES WEEKS, Agt. Executed in the presence of JOHN H. MARCH." It was claimed by the defendant in error that after he had prepared this bill of sale, and delivered it to Weeks for...