3 Wis. 347 | Wis. | 1854
By the Court,
The pleadings and proofs in this cause present a case of unusual hardship, and we have carefully considered it with a view of discovering some means by which, consistent with the doctrine and practice of equity, we could afford relief to the defendants. By the rules which govern courts of equity, however, we are unable to find any satisfactory reason for the decretal order, made by the Circuit Court.
The bill in this cause was filed to obtain a decree of foreclosure of a mortgage given to secure the performance of the conditions of a bond. A contract for the purchase of a large number of sheep was made between the complainant and the defendant, George H. Slaughter, and after the delivery of the sheep to Slaughter, he executed a bond conditioned to deliver to the complainant at Milwaukee, at certain specified times, certain quantities of woo\ and ah o to deliver, at the expiration of five years from and after the date of the bond, to the complainant, the same number of good merchantable sh ;ep, as had been delivered to Slaughter.
The defence set up is, that in this transaction Slaughter was unable to judge of the quality or condition of the sheep and of this he informed the complainant - -that at the time of the delivery of the sheep by the complainant, the defendant informed him that if the ewes were “with lamb” he did not want them, and that relying solely on the representations that the ewes were so and and not in the condition stated, he received the sheep, but that afterwards he discovered
The proofs taken show an instance of very great indiscretion on the part of the defendant in purchasing a species of property in a knowledge of the quality and condition of which he was quite unskilled, relying entirely on the honor and good faith of his vendor, but without requiring and receiving a specific warranty as to the quality and condition of the property. The testimony of Winston and Paddleford, two of the witnesses for the defendant, shows that at the time of the delivery of the sheep, the defendant enquired “in what manner the sheep had been driven, and stated that if the ewes were uwith lamb” (pregnant) he did not want them” to which the complainant replied that “the bucks had been separated from the ewes on the d?dm, except in crossing Rock Praiode, at which tíme the bucks loere “aproned or shingled.” There was other evidence to the effect that the sheep had been properly fed and attended to, but that the greater portion of them died during the winter in consequence of untimely yeaning, and that many of the ewes were “with lamb” at the time the defendant received them.
It is by no means clear that the complainant had any knowledge, at the time he delivered the sheep to the defendant, of the condition of the ewes, so as to charge him with fraud in suppressing the truth, nor can we glean from the testimony any evidence of a warranty. The complainant merely stated the manner in which the sheep had been driven, and there was no express warranty either required or giv
We believe too, as declared in the decree of the Circuit Court, that Col. Slaughter received the sheep from the complainant, with the understanding on his (Slaughter’s) part that they were reasonably sound and fit for the uses and purposes contemplated by him in his contract; but the misfortune to him is, that he did not exact an engagement to that effect from the complainant. We cannot however concur with the court below that there was an implied wa/rrmty by the complainant as to the condition or fitness of the sheep for the purposes contemplated by the defendant.
The proof shows that the bond and mortgage were executed some days after the sheep had been delivered, and it is only necessary to remark that the rule, whether in equity or at law, is, that in the absence of fraud all previous parol negotiations are merged in a subsequent written contract relating to the same subject.
The bond, therefore, is that to which we must refer for the best evidence of what the contract between the parties was, and the conditions of this bond only recite that the compláinant delivered the sheep to the defendant, George H. Slaughter, and that he agreed to deliver to the complainant, annually, during five years from and after the date of the bond, a quantity of wool, and to return to the complainant, at the expiration of said five years, the same number of good merchantable sheep, which he had received.
But, if we look into the original transaction, there is nothing to be found which would give rise to the implied warranty mentioned in the denree of the Circuit Court.
The current of English and American authority, on the subject of sales of chattels, ever since the case of Chandaler vs. Lopus, (2 Croke’s, James 4,) which is the leading care, has firmly established the law to be, that on such sales, in the absence of an express warranty of quality or condition, no implied warranty can be raised. The numerous cases on this branch of the law are very ably collated in the notes to the case just cited, (Chandaler vs. Lopus) in Smith's Lear ding Cases, with American notes, Vol. 1, page 77.
The general rule of law above stated is, however, inapplicable to the case of manufactured articles intended for particular purposes, or to the sale of articles to be used as food, or to sales of goods by sample. These exceptions are fully illustrated in the reports, and have been pointed out and settled in our own courts, (vide Getty et al. vs. Rountree et al., 2 Chand. 28, and Walton et al. vs. Cody, 1 Wis. R. 420.
This case does not fall within any of the exceptions to the general rule.
It presents the case of a ¿sale of chattels in which the vendee did not exact, nor did the vendor give any warranty of the quality of the things sold — there was no f-'aud shown in the case, and we are unable to see
The decree of the Circuit Court must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
