40 Vt. 588 | Vt. | 1868
The plaintiff claims to recover for a breach of warranty as to the quality of a quantity of butter sold by the defendant to the plaintiff. The facts found by the referee exclude the idea of any fraud in the sale, and no claim is made on any such ground. The sale, warranty and breach are indispensable to the plaintiff’s right of action. * ,f
It is insisted on the part of the defence that the referee erred in receiving parol evidence to prove the contract of sale and warranty. This question the referee refers to the court. The ground of the objection urged, is that the “ bill of butter,” as it is called, introduced by the plaintiff, is such a written contract as excludes the parol evidence. It is conceded by the plaintiff’s counsel that the principle that parol evidence is inadmissible to vary or alter a written contract, or to add to it further stipulations, is applicable to bills of sale executed in the common and usual form of such instruments. For the purposes of this question, the particular form of a bill of sale is not material if it contains the substantial elements of a contract. If the bill of sale, memorandum, receipt or whatever it may be called, in this case, possesses the necessary elements of a contract of sale, the parol evidence was inadmissible ; otherwise it was properly received. The paper or memorandum in question is this: At the top of the paper is written, “ Stamford, January 10th, 1860. Elias K. Carpenter, bill of butter.” Under this is a column of figures, 72Jlbs., 76J lbs. &e. Under these figures is the footing 603 lbs.; opposite which are written the words, “ gross, tare each 11 lbs.” under which is written, “ received payment for the above butter as weighed at Weld’s store,” and signed, “ Elias K. Carpenter.” The question is whether this is such a written contract of sale of a quantity of butter from the defendant to the plaintiff as to exclude parol evidence of such sale with warranty as to quality. To constitute a sale there must be a buyer, a seller and a thing sold, and words importing a transfer of the title of the thing from the seller to the buyer. To constitute a perfect written contract of sale all this must appear upon the instrument. The price is also usually specified ; but for the purpose of the question in this case, that per
The next objection insisted upon by the defendant’s counsel' is, that the conversation between the parties, found by the referee, does not amount to a warranty ; the counsel is right in the position that in order to amount to a warranty, it must have been so understood by the parties at the time of the sale ; and unless the referee has substantially so found as matter of fact, the report shows no warranty This point is not free from difficulty, the plaintiff having bought the
It is again insisted that it was the duty of the plaintiff, when he discovered that the butter did not answer the warranty, to notify the defendant and return the butter within a reasonable- time, and that his neglect to do so is a bar to his recovery. But when property is bought on inspection with warranty as to quality, we do not understand any such duty is imposed on the purchaser in order to entitle him to an action for breach of warranty. Nor has the purchaser generally a right in such case to return the property; although he has such right if there is fraud in the sale on the part of the seller. Where property is not bought on inspection, but the sale is executory, the seller contracting to furnish goods of a particular quality, and forwards them, and they do not answer the contract, the buyer may return them ; and if he neglects to do so, but keeps
It is also objected that the referee adopted a wrong rule of damages. The rule adopted by the referee was in effect the difference between the price paid and the actual value of the butter at the time the plaintiff purchased it of the defendant. The rule of damages in such cases is, as claimed by the counsel of the defendant, the difference between the actual value of the property at the time of the sale, and what its value would have been had it been as warranted to be. But where there is no evidence as to the value of the property as warranted, except what may be inferred from the price stipulated in the sale, that price may be taken as what its value would have been had it been as warranted. As there was no evidence in this case as to the value of the bulter as warranted to be, except the price stipulated in the contract, it is to be taken that the price paid was the value of such butter as this was warranted to be ; so that the rule of damages adopted by the referee is, as applicable to this case, the same in effect as that for which the defendant’s counsel contends. The difference is only in the form of stating the rule, the result being the same.
Judgment affirmed.