Thomas v. Irvine 171 Ala. 332, 55 So. 109

Thomas v. Irvine.

Assumpsit.

(Decided Feb. 2, 1911.

Rehearing denied May 5, 1911.

55 South. 109.)

1. Sales; Warranty; Breach; Fraudulent Misrepresentation; Pleading. — In attempting to set up a set off to plaintiff’s claim, damages because of the unsoundness of a mule sold by plaintiff to the defendant, a plea averring the unsoundness at the time of the trade, and that such fact was either known to plaintiff, or could'have been known with the exercise of ordinary care, was insufficient to allege a warranty, and its breach, or fraudulent misrepresentation in the sale.

*3332. Pleading; Conclusion. — An allegation that • a written contract was entered into between plaintiff and defendant for the sale of a mule, and that said contract embodied, all the agreements for the sale of the mule, and that said contract embodied all the agreements of parties, and that there was no guarantee of soundness of any kind set out in such written contract, were but the statements of the pleader’s conclusions, and the pleading was demurrable for a failure to set out the terms of the contract.

3. Evidence; Parol to Vary Writing. — Written contracts not bearing any evidence of incompleteness are presumed to comprise the whole contract between the parties, and, as a rule, parol evidence is not admissible to add to, alter, or vary their terms.

Appeal from Lauderdale Circuit Court.

Heard before Hou. C. P. Almon.

Action by Frank Irvine against J. B. Thomas in assumpsit on the common counts. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

The third plea is as follows: “Comes the defendant, and pleads, by way of set-off to said complaint exhibited against him, that the plaintiff is indebted to him in the sum of $150, for that on or about the 9th day of January, 1909, the plaintiff sold, bargained, or exchanged with defendant one certain mule, which he then and there alleged to be sound; but defendant alleges that the said mule was not sound, but was at the time diseased and unsound, and within a short time after the sale or exchange died of such disease, the exact nature of which is unknown to the defendant, to the damage of defendant $150, which he offers to set off against the plaintiff’s demand.” Plea 2 alleges a verbal warranty of soundness, and that the mule was not sound, but subject to periodic and violent attacks of colic, from which he died.

The first replication to pleas 2 and 3 is as follows: “Plaintiff says that at the time the said mule was sold or bargained to the defendant, and on, to wit, the 9th day of January, 1909, a written contract of sale wav made and entered into by and between plaintiff and r*efendant, and that said contract embodied all the a'<™P,.. *334ments between the parties, and there was no guaranty of soundness of any kind set out in said written agreement.” Replication 2 to pleas 2 and 3: “Plaintiff says: That at the time of the sale, barter, or exchange of said mule, or the team of mules of which the mule in question was one, the. plaintiff executed to the defendant the following contract in writing: “This is to certify that I have this day sold to J. B. Thomas two mules, about 11 or 12 years old, the consideration being the transfer of title to' me of one bay and one brown mare, and the payment to me of $25 by J. B. Thomas. I hereby certify that there is no lien or debt due to any one on the above-mentioned mules, and they are my property. Florence, Ala., Jan. 9, 1909. [Signed] F. W. Irvine.’ That said written agreement constituted all the agreements made by the plaintiff.”

The defendant offered to prove by himself verbal representations made or guaranty of soundness alleged to have been made by the plaintiff to -the defendant relative to the mules, which the court refused to let him do; it appeared that a contract similar to the one set up in the replication was made and executed to Irvine by Thomas relative to the mares.

Paul Hodges, for appellant.

When goods are sold for a particular purpose there is an implied warranty that they are fit for such purposes. — Snow v. Mfg. Go., 69 Ala. 111. Concealment under some circumstances is quite as potent in inducing a belief in fraud as actual misrepresentation. — Barnett v. Stanton, 2 Ala. 181; Mc-Gaa v. Elam Drug Go. 21 South. 481; 10 A. <£- E. Enc. of Law. It was for the jury to say whether the conduct of the plaintiff was such as to authorize damages for breach .of warranty. — 4 A. & E. Enc. of Law, 30. The court erred in sustain ing demurrers to pleas 2 and 3. — Parlcer *335 v. MoFerrin, 15 South. 518; Thompson v. Harvey, 86 Ala. 519. When a portion of a written contract rests in parol, evidence may be given thereof, provided it does not contradict or vary the writing. — 1 Port. 359; 30 Ala. 432; 20 South. 624. S'o, a separate collateral agreement not inconsistent with a written agreement may be shown by parol. — Huckabee’s case, 75 Ala. 342; Poio.ell v. Thompson, 80 Ala. 51; Whaley v. Reese, 128 Ala. 500. The court erred in not sustaining demurrers to the replication as it failed to set out the terms of the contract.— Parker v. MoFerrin, supra; MoGaa v. Flam D. Go. supra; Percy v. Johnson, 59 Ala. 652.

C. E. Jordan, for appellee.

The contract in this case bears no evidence of incompleteness, and hence, could not be altered, added to or varied by parol evidence.— Green v. Gasey, 70 Ala. 417; Orescent B. Go. v. Handley, 90 Ala. 486; 21 A. & E. Enc. of Law, 1090. Counsel discuss the other assignments of error, but without citation of authority.