8 Conn. 11 | Conn. | 1830
The defendant, in support of her motion for a new trial, relies on the principle of law, that when the parties to a contract have reduced it to writing, the writing shall be presumed to contain the whole contract between them: Not only so, but that all previous and contemporaneous declarations and negotiations relating to it, shall be deemed to have been waived; and that the only contract between the parties is contained in the writing: And if so, then that the written contract cannot be varied, in any respect, by parol testimony. Hence the counsel for the defendant infer, that when it had been proved, that it was agreed by the parties, that one Jesse Mallary should give a bill of sale of the sloop or vessel, because the legal title was vested in him, she being a foreigner, and therefore incapable of holding such property; and that a bill of sale had been given, by Mallary, without warranty; no parol proof of a warranty by the defendant could be received. The premises are undoubtedly true; but the inference is denied. The purchase of this sloop, and the terms of payment, and the receipt of the purchase money, all were, as they well might be, by parol. The equitable owner, however, was a foreigner; and, as such, could not enjoy, or confer on another, the privileges of an American owner. She then, having agreed to sell the vessel to the plaintiff, for a stipulated sum, and having, at the time of sale, warranted her tight and sound, further agrees, that Jesse Mallary, who held her in trust for the defendant, should give a bill of sale of her, to vest the title in the plaintiff. This bill of sale was not to be given to the defendant, and then she to give a bill of sale to the plaintiffs. Had such been the contract, then, perhaps, an acceptance of the bill of sale, it containing no warranty, would have brought the contract within the principle laid down by the defendant. The case presents
The motion for a new trial must be denied.
New trial not to be granted.
