Hersom v. Henderson, 21 N.H. 224

Hersom v. Henderson

21 N.H. 224 | Superior Court of New Hampshire | 1850

Ginchrist, C. J.

The writing produced in evidence is a bill of sale of the horses, containing a receipt for the payment of their price. Nothing is said in it about a warranty of their soundness.

■The plaintiffs have proved by parol evidence independent of the writing, and having no connection with it, that the defendant, at the time of the sale, warranted the horses to be sound.

The court ruled, that the writing must be presumed to contain the contract between the parties, and that parol evidence was not admissible to prove a contract of warranty not contained in the writing.

Parol evidence is not admissible to vary or control the writing, and if the evidence offered has that effect, it was properly excluded. Rut we think that the evidence was competent. The plaintiffs did1 not rely on the writing to make out their case, nor was it necessary that they should do so. The evidence of the warranty does not contradict or vary the effect of the writing in any degree. It does not even explain it, and it needs no explanation by evidence aliunde. The defendant proved a warranty by evidence as independent of the writing, as one *227thing of the kind can be of another. There is no reason to presume that, because the parties made a written contract relating to the price and age of the horses, therefore they made no other contract relating to them, touching a matter perfectly consistent with the writing. There is no necessary or usual connection between the two matters, and we cannot reason from one to the other. The opinion of the Court is that the ruling was erroneous ; and there is an English case which justifies this conclusion. In the case of Allen v. Pink, 4 M. & W. 140, the defendant gave a verbal warranty of a horse, which the plaintiff thereupon bought and paid for, and the defendant then gave him the following memorandum: “ Bought of GL A. (the plaintiff,) a horse, for the sum of seven pounds, two shillings and sixpence. (Signed) G-. P.” It was held, that parol evidence might, notwithstanding, be given of the warranty. Lord Abinger said, in the course of his opinion, “ The general principle stated by Mr. Byles, is quite true, that if there had been a parol agreement which is afterwards reduced by the parties into writing, that writing alone must be looked to, to ascertain the terms of the contract ; but that principle' does not apply here. There was no evidence of any agreement by the plaintiff that the whole contract should be reduced into writing by the defendant. The contract is first concluded by parol, and afterwards the paper is drawn up which appears to have been meant merely as a memorandum of the transaction, or an informal receipt for the money, not as containing the terms of the contract itself.”

Verdict set aside.