46 Kan. 591 | Kan. | 1891
Opinion by
This was an action upon a promissory note, executed by John M. Ostrander, on the 2d day of September, 1885, to Frank G. Willard, for the sum of $965, payable in 1 year and 11 months after date, with interest at 12 per cent, per annum. The answer of Ostrander admitted the execution of the note, but alleged that it was given in part payment for a flock of sheep purchased of Willard; that Charles Weeks, the duly-authorized agent of Willard, sold and delivered to Ostrander 2,173 head of sheep for $5,358, and warranted them to be sound, healthy, and free from all
It is claimed that the’ defendant’s right of recovery, if any, was based exclusively upon a written bill of sale executed by Weeks as agent for the plaintiff in error, and that the court erred in permitting oral evidence to be introduced in relation to the warranty. It seems from the evidence that negotiations had been pending for some time between Ostrander and Weeks, the agent of the plaintiff in error, for the purchase of the flock of sheep in question. The sale was consummated on the 2d day of September, 1885, and the notes and a chattel mortgage were executed, but the cash payment of $1,500 was not made until the 14th day of September, when the following bill of sale was executed and delivered to the defendant in error:
“Know all Men by these Presents: That, in consideration of the sum of $5,358, the receipt of which is hereby acknowledged, I do grant, sell, transfer and deliver unto John M. Ostrander, of Wa Keeney, Kas., him and his heirs, executors, and administrators and assigns, the following goods and chattels, viz.: Eleven hundred grade ewes, known as the Willard ewes, said ewes are all over-to four years of age, except 50, which may be over four years of age; also 433 lambs and 640 wethers, from one to two years of age, all of which are free from disease, and in a healthy condition, to the best of my knowledge and belief: To have and to hold all and singular the said goods and chattels forever. And the said grantor hereby covenants with the said grantee that he is the lawful agent of the said goods and chattels; that they are free from all incumbrances; that he has good right to sell the same as aforesaid, and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
“ In Witness Whereof, The said grantor has hereunto set his hand this 14th day of September, 1885.
Charles Weeks, Agent.
“Executed in the presence of John H. March.”
It was claimed by the defendant in error, that after he had
“The receipt was delivered to the plaintiff as the contract, of the defendants; it is in proper form, and the terms and conditions are expressed in the body of it in a way not calculated to escape attention. The acceptance of it by the plaintiff, at the time of the delivery of his package, without notice of his dissent from the terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading. It was his duty to read it. The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading it. Any other rule would fail to conform to the experience of all men. Written contracts are intended to preserve the exact terms of the obligations assumed, so that they may not be subject to the chances of a want of recollection or an intentional misstatement. The defendants have a right to this protection, and are not to be deprived of it by the willful or negligent omission of the plaintiff to read the paper.”
The same doctrine is stated in Bigelow on Fraud, 525:
“No doubt it would be imprudent, in a sense, not to read or to require the reading of an instrument before signing or accepting it; indeed, the courts would turn a deaf ear to a man who sought to get rid of a contract solely on the ground that its terms were not what he supposed them to be.”
The same rule is laid down it Hawkins v. Hawkins, 50 Cal. 558; Bacon v. Markley, 46 Ind. 116; Taylor v. Fleckenstein, 30 Fed. Rep. 103; Hazard v. Griswold, 21 id. 178; Ricev. Mfg. Co., 2 Cush. 87; and Jaeger v. Whitsett, 3 Colo. 105.
“When parties have deliberately put their engagements in writing, it is conclusively presumed that the whole contract, and the entire extent of their undertakings, were reduced to writing; and oral testimony of a previous, contemporaneous or subsequent colloquium is rejected, as it would tend to substitute a new contract for the one really agreed on.” ( Wren v. Hoffman, 41 Miss. 619, and authorities there cited; Kerr v. Kuykendall, 44 id. 146.)
This court has said in one of the early cases that where one of the main questions in dispute, the initital point in the case, is an alleged purchase, and it is disclosed that the alleged purchase was concluded in and is evidenced by a bill of sale, all parol testimony should be excluded until the writing is produced. The latter is the best evidence. (Barnett v. Williams, 7 Kas. 341.)
In Dunn v. Hewitt, 2 Denio, 637, it was held that where a bill of sale had been given for the purchase of personal property, a party making title by virtue of such purchase must produce the writing, and,cannot prove the transfer by parol; and where the existence of the bill of sale was first disclosed on cross-examination of a witness who had orally proved the transfer on his direct examination, the parol testimony should be stricken out.
In Van Ostrand v. Reed, 1 Wend. 424, it was decided that a party, on the sale of an article, made representations amounting to a warranty, and the sale was consummated by a written transfer without a clause of warranty being inserted. The vendee, in an action of assumpsit, was not permitted to show the representations and assertions made previous to the
It is contended by the defendant in error that the warranty was given after the sale was consummated, and was therefore void. The evidence does not sustain this position. The cash payment of $1,500 was made the same day the bill of sale was executed, and the defendant below insisted that he should have a contract in writing.
The view we take of the law applicable to this case necessitates a reversal, for the reasons stated upon the first assignment of error. It will not be necessary for us to consider the other numerous assigned errors, as they will not likely occur again upon a second trial. It is recommended that the judgment of the district court be reversed, and a new trial be granted.
By the Court: It is so ordered.