| Vt. | Feb 10, 1917
The suit is for the breach of a warranty claimed to have been made in a contract for the sale of an automobile. The plaintiff introduced in evidence the written instrument shown in the statement of the case, and testimony tending to establish the making and breach of a parol warranty of the article described in the writing. This testimony was objected to as tending to vary the written instrument, and an exception was taken to its admission.
In receiving the evidence of a warranty against the defendant’s objection, the court held the writing to be merely an order and agreement to pay, and no exception was taken to the ruling as a construction of the instrument; and the plaintiff now contends that the defendant, having failed to take such an exception, is concluded by the court’s construction. But we think the defendant was not required to treat the two matters as separate and independent rulings. The instrument was construed as a basis for passing upon the offer, and the admission of the evidence against the objection made would have amounted to a construction of the instrument if nothing more had been said. The whole matter was covered by the exception taken.
The plaintiff contends that the instrument in question is no more in legal effect than a receipt, and refers to our construction of the instrument passed upon in Putnam v. McDonald, 72 Vt. 4" court="Vt." date_filed="1899-08-31" href="https://app.midpage.ai/document/putnam-v-mcdonald-6585045?utm_source=webapp" opinion_id="6585045">72 Vt. 4, 47 Atl. 159. But we think a comparison of the two instruments discloses very material differences, and points clearly to the opposite conclusion. .The instrument in controversy is signed by both the parties, and contains the essential elements of a contract of sale. It covers an order for a designated car, a list of the equipment included, the price agreed upon, the time of delivery, and the time and manner of payment. Part payment is to be made in cash at the time of placing the order, and the balance by note at the time of delivery; and there is a further provision that the delivery is to be made at once. This presents a case of full performance by both parties at the date of the writing. The whole instrument implies a transfer of the property at
But the plaintiff claims that the writing does not purport to be a repository of the entire contract, and cites among other authorities Linsley v. Lovely, 26 Vt. 123" court="Vt." date_filed="1853-12-15" href="https://app.midpage.ai/document/linsley-v-lovely-6575195?utm_source=webapp" opinion_id="6575195">26 Vt. 123. The question litigated in that case was whether the suit was prematurely brought. The writing in question was a bill for goods bought, and contained the words “six per cent, off for cash.” This implied that there was a period of credit, but the writing was silent as to the time; and the question was whether parol evidence could be received to show that the sale was made upon-a credit of six months. The court considered that the writing did not express a contract, but was simply declaratory of the fact that one had been previously made; and held that the true contract of the parties could be shown. The case is not an authority for the plaintiff upon either of his claims. The writing in question here evidences a present agreement of the parties, covering the essentials of a valid contract, and containing nothing to suggest that there were other stipulations which the parties did not intend to include in the writing.
Counsel suggest in argument an aspect of the case not before us on the questions presented, and so not considered, which might enable the plaintiff to recover. In view of this fact, we do not render final judgment, but remand the case for further proceedings.
Judgment reversed and cause remanded.