| Ark. | Feb 16, 1920
Lead Opinion
(after stating the fácts). Counsel for appellant moved to exclude the testimony of appellees and excepted to the ruling of the court in admitting it. The court erred in its ruling. There was no implied warranty as to the quality of the flour. The contract itself was silent in this respect. In the case of a sale of personal property a warranty of its quality is a part of the contract of sale and is not a separate and independent collateral contract. Therefore proof of such warranty cannot be added to the written agreement by parol evidence. To justify the admission of a parol promise by one of the parties to a written contract, on the ground that it is collateral, the promise must relate to a subject distinct from that to which the writing relates. Our court has expressly held that a bill of sale which contains no warranty cannot be added to by proof of a contemporaneous oral warranty. Lower v. Hickman, 80 Ark. 505" date_filed="1906-11-12" court="Ark." case_name="Lower v. Hickman">80 Ark. 505. In discussing the question, Chief Justice Hill said: “A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. It may be a complete contract signed by both parties and comprehensive and exhaustive in detail, and contain many mutual agreements, terms and stipulations, or it may be a simple bill of sale, or sale note evidencing the sale. The principle is the same in any of these transactions, and oral evidence of a warranty is almost universally excluded when a complete written instrument evidences the sale. It is not important that the instrument be signed by both parties, for acceptance of the other may be equally binding, and the principle here invoked is as often applied to unilateral as to bilateral instruments.”
The same reasoning applies with regard to the testimony of the test made of the sample flour sent by appellant to appellees after the contract had been executed. The sale was not made by sample, and the contract was silent in this respect. The contract having failed to show that the sale was by sample or that the flour was to be equal in quality to other flour kept in stock by appellees, or that it was to be satisfactory to appellees, it was clearly error to permit appellees to introduce parol evidence in regard to these matters. It was likewise error to permit appellees to introduce parol evidence to the effect that appellant’s salesman told them that, if the price of flour declined, they might countermaud the order, for such testimony plainly varied the terms of the written order, or contract.
For the error in admitting such testimony the judgment must he reversed and the causé remanded for a new trial.
Rehearing
(on rehearing). Counsel for appellee have filed a motion to retax the costs and for final judgment here, and for grounds therefor say that, before the trial in the court below, they served upon appellant’s attorney an offer in writing to allow judgment to be taken against them for the sum of $52.50, and that no acceptance of said offer was filed as required by statute. They claim that inasmuch as the plaintiff failed to obtain judgment for that amount, that it should pay the costs as prescribed in section 6277 of Kirby’s Digest. This section has no application to the present case.
Appellant failed to obtain judgment in the court below for any sum because the court erred in the admission of certain evidence offered by appellee and to secure a reversal of that judgment it was necessary for appellant to prosecute an appeal to this court. Our statute provides that if the judgment be reversed the appellant shall recover his costs. On appeals from judgments at law it is obligatory upon this court to follow the statute. American Soda Fountain Co. v. Battle, 85 Ark. 213" date_filed="1908-01-27" court="Ark." case_name="American Soda Fountain Co. v. Battle">85 Ark. 213, and Price v. Madison County Bank, 90 Ark. 195" date_filed="1909-04-19" court="Ark." case_name="Price v. Madison County Bank">90 Ark. 195.
It is true as contended by counsel for appellee that the measure of damages on the retrial of the case will be as laid down in Kirchman v. Tuffli Bros. Pig Iron & Coke Co., 92 Ark. 111" date_filed="1909-10-25" court="Ark." case_name="Kirchman v. Tuffli Bros. Pig Iron & Coke Co.">92 Ark. 111. If on the retrial of the case in the circuit court appellee keeps the offer under the statute good and appellant should fail to obtain judgment for more than the amount tendered, then section 6277 of Kirby’s Digest will apply, and appellants would be taxed with the costs from the time of the offer.
It follows that the motion must be denied.