7 Mo. 509 | Mo. | 1842
Opinion of ike Court, delivered by
This was an action, by pefition in debt, on a promissory nete, executed by Pierce Wade to Isaac C. Scott, tor the
Wade’s defence was fraud, misrepresentation, and a breach of warranty. On a trial, Scott obtained judgment for the amount of the note. It appears from the bill of exceptions, that Scott sold to Wade a slave, with a written warranty that he was sound, with the exception of a small defect in. his hands. Avery short time after the sale, the slave’s hands were in such a condition as to prevent his making any use of them. They had lost their muscular action, and were incapable of grasping any thing. In the opinion of some, so great was the defect in the slave’s hands, that he was not regarded as worth any thing. Scott had possession of the slave but a short time before he sold him to Wade, during which, there was evidence going to show that his hands were not in such a state as prevented his doing work. Wade saw the slave’s hánds before the sale, and examined them; and was told that the injury they had sustained proceeded from cold. The physician who examined the slave’s hands after the sale to Wade, doubted whether the defect was real or pretended, they being full and natural in their appearance: and it was not until he had required the slave to use his hands in various ways, that he became satisfied that he was utterly unable to perform any thing with them. Theré was evidence of an offer to rescind the contract, made by Wade to Scott, some time after the sale.'
One of the points presented for determination, is, whether in an action on a promissory note, given for the price of an arti°le sold, a defendant may give evidence, shewing the true va^ue article sold, in case of a fraud or breach of in diminution of the stipulated value of the ar- ^ must confessed, that this question has been decided in different ways by the courts; and that there is a weight of authority and learning on either side of it, which ofre^eve a court of any anxiety, in being found either in maintaining or denying the principle. When the authori-^es are ^us divided about a proposition; and when a court will be sustained in taking either course in regard to it, considerations of policy and convenience should determine its choice. It is more reasonable, that when a suit is brought,
A second point in the case is, whether on a breach of warranty in the sale of an article, where there is no fraud, the vendee can rescind the contract ? There is authority for 'the position, that where a purchaser of an article, having had an opportunity of exercising his judgment upon it, had bought it with a warranty, that is of any particular quality or description, and actually accepted and received it into his possession, can afterwards, upon ascertaining that the warranty has been violated, of his own will, without the consent
This doctrine it will be seen, is predicated on the supposition, that the vendee has accepted the article sold, that the contract is executed: it is not intended to be applied to cases of executory contracts, as where an article is ordered from a manufacturer, who stipulates it shall be of a certain quality, or that it shall answ'ér a particular purpose; there, if the article is not such as was contracted for, the party may, after giving it a reasonable trial, return it, provided it be done in a reasonable time, and he does no' act from which it may inferred he has accepted it. In these cases it cannot so much be said, that the vendee rescinds the contract, as that he refused to enter into it, because the vendor has failed to comply with his engagement.
From the instructions given by the court below, some stress seems to have been laid upon the fact, that and did examine the hands of the There is no doubt, that when an had an opportunity, slave before the sale, article has been inspected before it is purchased, a warranty does not extend to defects which are obvious to the senses. But skill and judgment are often requisite to discover defects in articles offered for sale; and is he who following the dictates of prudence, refuses to rely on his examination, and requires warranty, at last in no better situation than he who purchases without one ? It is clear that when an opportunity has been afforded for examin-mg an article before sale, the vendee, ii he does not require a warranty, is without redress, unless he can show • , a fraudulent concealment, or misrepresentation on the part of the vendor; but, although the vendee may have an op-portunitv of examining an article, yet if he requires a , ,, , t „ i • i warranty, the vendor is answerable tor any defect which is not obvious to the senses; 2 Kent Com., 485-6. The Oneida Manufacturing Society v. Lawrence, 4 Cow., 440. Whether the defect in the slave’s hands was er ornot, than that excepted in the warranty was a question for the jury; and if they found it greater, it constituted a breach of the warranty, for which the party was answerable; and advantage could be taken of it in this
may inferred from the instructions given by the court below, that considerable importance was attached to the circumstance, that Wade was apprised of the defect in the slave’s hands at the date of the warranty. When a written warranty is made by the vendor, and that warranty is general, or contains a specific exception, with what propriety can evidence be introduced, to show that the vendee was aware of the unsoundness of the article, or of other defects than those excepted, or that the defect excepted was greater than represented to be? Here is a written warranty; its sense and effect are to be ascertained by itself, if evidence of the knowledge of any unsoundness on the part of the vendee is admitted, it must be on the hypothesis, that if the fact is established, then the vendor’s responsibility is restricted according to the knowledge of the vendee, without regard to the terms of the warranty; otherwise the evidence is irrelevant. .Is it not against a plain principle of law to receive parol evidence, to vary, limit or extend the legal effect of the terms of a written instrument? This doctrine is sustained by the authority of Shackelford v. Gorch, 1, Bibb 583, where it is held, that in an action of covenant, evidence that the defendant knew the article sold, and covenanted to be sound, was unsound, is not admissible?
As to the' point made relative to the defendant’s right begin and conclude the argument to the jury, it may be observed, that there is iio doubt of the right of the defendant to begin, when the onus probandi lies upon him, the technical form of the pleadings; 1 Starkie, 184. But this is a matter depending on the practice and discretion of the circuit courts. In an ar-gumen^ a jury, repty may or may not have had an influence onthe verdict. If the verdict is such a one as could not otherwise have been rendered on the law and the evidence of the case, the circuit court would not ; , . grant a new trial, although the right to conclude had been denied to him who held the affirmative, and against whom
Opinion, by
I concur in Judge Scott’s opinion generally, and in reversing the judgment of the circuit court, believing that the question of notice, under the general issue, does not arise in this case, inasmuch as the defences were fully set forth by special pleas. I give no opinion on that point.