3 Wend. 459 | N.Y. Sup. Ct. | 1830
By the Court,
It is quite evident that the plaintiffs below could not recover on a contract without warranty, because the defendant never authorised the agent to make a contract of that description. The writing did not shew such a purchase as the agent was authorised to make or as he did in fact make. Did the judge err in allowing the warranty to be proved by parol 1
This contract is within the 15th section of the statute of frauds, and to be binding must be in writing. Roberts says, that the written agreement or memorandum must set forth distinctly the terms of the contract or promise, either by its own contents and expression, or by direct reference to something extrinsic which may render it intelligible and certain. (Rob. on Frauds, 116.) In the case of Brodie v. St. Paul, (1 Vesey, jr.) Mr. Justice Duller, sitting for the Ld. Chancellor, said, “if the agreement is certain and explained in writing,'signed by the parties, that binds them; if not, and evidence is necessary to prove what the terms were, to admit it would effectually break in upon the statute and introduce all the mischief, inconvenience and uncertainty the statute was designed to prevent.” These views accord with those of Ch. J. Kent, in the case of Bailey & Bogert v. Ogden, (3 Johns. R. 419,) where he says, “the form of the memorandum cannot be material, but it must state the contract with reasonable certainty, so as the substance of it can be made to appear and be understood from the writing itself, without having recourse to parol proof” Lord Ellenborough says, in the case of Baydell v. Drummond, (11 East, 156,) “ the statute excludes parol evidence.” Lord Redesdale would not hear parol evidence to shew what was intended to be the term in a lease, by connecting the lease with an advertisement of the premises. (1 Schoale & Le Froy, 22.) I find no case in which these authorities are questioned, and in my opinion, to question the principle upon which they are based would be, in effect, to annul the statute. If parol evidence were permitted to shew terms and conditions in a contract,
Was that part which was omitted in this case, the warranty clause, one of the substantial terms of this contract ? I cannot view it otherwise. In the case of Powell v. Edmunds, (12 East, 6,) it is said that a warranty as to the quantity of timber would vary the agreement contained in the written conditions of a sale. The warranty is almost as important a part of the contract as the price or the designation of the article sold, and equally so with what relates to the delivery or the credit. If we would avoid confusion, it should be recollected that we are not endeavoring to ascertain what is necessary to be stated in declaring upon a contract properly made, but whether a warranty is a substantial part of it. It often happens that a part only of a contract need to be set forth in the pleadings in a suit. (1 Chitty’s Pl. 300.) Suppose the contract had been with warranty and the memorandum in the plaintiffs’ sales book had been signed by the defendant, but the warranty clause omitted, and suppose the rice had been delivered and had proved to be of an inferior quality, could the defendant have shewn the warranty by pa- • rol ? The authorities to which I have referred shew most abundantly that he could not. Is the rule of proof different where the memorandum is subscribed by the agent ? Most certainly not. To shew that the defendant was bound by the contract made by his agent, the judge admitted parol evidence that there was a warranty, and the jury found that the agent had authority to make a contract with warranty; yet if the defendant had recognized the contract, it would have been to him a contract within the statute, and therefore void; or a contract without warranty, because he would have been confined to the written memorandum to shew its terms. In testing the authority of the agent, no contract but such as was available to the defendant should have been consid
If the contract proved by parol is that relied on by the plaintiffs below, they can not recover, because it is within the fifteenth section of the statute of frauds: a material part of it, the warranty, being omitted in the memorandum. If they are proceeding, as they appear to be, on the memorandum made in the sale book, they cannot recover, because they are endeavoring to enforce a contract, or rather seek to recover damages for the breach of a contract made without the authority of the defendant below.
It is admitted on both sides that the memorandum in the plaintiff’s sale book is the writing that is to take the sale out of the statute. That contains no warranty; the copy of the memorandum handed by the broker to the plaintiff did contain one. If a broker deliver a "bought and sold note which materially differ, there is no valid contract. (1 Holt. R. 172.) Such was the case here, unless what the defendants contend is true, that the note entered in their sale book contains in effect a warranty, shewing, as they aver, that the sale was by sample, which implies a warranty that the article sold shall correspond with the sample. Though the allegation of this fact is repeatedly made in the argument submitted to us, yet I do not find it to be so in point of. fact. The memorandum contained in the case discloses nothing to shew that the sale was by sample. If it is meant that the memoranda are alike because it is shewn by parol evidence that the sale was made in that manner, the defendants are met by the objection that the fact is not proved by the writing, and it is not permissible to shew it otherwise.
It is urged that the plaintiffs might recover on the general count for goods bargained for and sold. The objection to this position is two-fold ; first, the contract is executory and the plaintiffs are proceeding for the damages they have sustained for the non-fulfilment of it; and secondly, they fail to prove in a proper manner a contract by which the defendant is bound. I think the judgment below ought to be reversed.
Judgment reversed.
