67 Wash. 414 | Wash. | 1912
This is a suit upon a promissory note. There was a judgment for the defendants for their costs. The plaintiff has appealed.
The respondents admit the execution and delivery of the note, and affirmatively allege, in substance and effect, that,
The court found the facts substantially as alleged in the answer; and further found, that the bi-plane and engine have not been delivered or tendered to the appellant; that on July 10, the respondents took from Waldron a chattel mortgage on the bi-plane and engine, to secure them on account of the $500 advanced by them to Waldron, and to secure the payment of the note in question; that the respondent E. A. Philbrick is a lawyer, and represented the respondents in all
The answer appears to have been drawn upon the theory of the breach of an oral warranty, but the respondents now insist that their defense to the action is predicated upon the fraud of the appellant. The history of the transaction is this: The respondents were a committee chosen by the citizens of Hoquiam to arrange for an aeronautic exhibition as a part of the entertainment to be given on the Fourth of July, 1910. As such committee, they entered into negotiations with the appellant for an aeroplane flight on that day, and a representative of the appellant went from Portland to Hoquiam to view the ground and complete the arrangements. Upon his return to Portland, the appellant on June SO, wired the respondents as follows: “You misrepresented your grounds. You stated you had half mile straight. Our aviator refuses to fly on 600 feet. Therefore the deal is off.” Upon the receipt of this message, the respondents E. A. Phil-brick and Hamburg Avent to Portland, on June SO, for the purpose of requiring the appellant to make the flight, insisting that its representative had definitely agreed to do so and had thereby caused them to advertise the fact that the flight would take place. The appellant refused to accede to their demand, and the bi-plane and engine were purchased on the following morning and shipped to Hoquiam. The purchase price was $1,500. The respondents paid $500 in money, gave their note for a like sum, and Waldron seems to have been given a credit for the remaining $500. The note was drawn in favor of Waldron, and by him forthwith indorsed to the appellant. The items purchased were con
This brings us to the material question, viz., the alleged oral warranty and fraudulent representations. It would seem that, when the respondent Philbrick, a lawyer, was insisting that the appellant had violated its contract and was demanding performance, he would not have depended upon oral representations of the appellant’s officers in making a second contract. Moreover, we think the testimony of the respondents tends to support the writings. In this connection, reference is again made to the telegram. The respondents testified that the appellant’s officers represented that Waldron was an experienced aviator and had made two flights in the machine. On the other hand, these officers testified that they made no such representations, but that they only stated that he had made balloon ascensions-. The respondent E. A. Phil-brick testified that he had a conversation with Waldron, in which he said to the latter: “I told him Mr. Manning, the
Touching the question of a parol warranty, it suffices to say that the bill of sale to Waldron warrants title only. The instrument is complete in itself, and evidence of a prior or contemporaneous parol warranty was inadmissible. Hockersmith v. Ferguson, 63 Wash. 581, 116 Pac. 11; Buffalo Pitts Co. v. Shriner, 41 Wash. 146, 82 Pac. 1016; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332; Seitz v. Brewer’s Refrigerating Mach. Co., 141 U. S. 510.
The judgment is reversed, with directions to enter a judgment for the appellant as prayed for in the complaint.
Dunbar, C. J., Chadwick, Parker, and Crow, JJ., concur.