cels,1 or the like, and the writing, whatever it may be, is silent upon the subject of a warranty,2 parol evidence that a warranty is the repository of the full and complete agreement of the parties, or only a memorandum of a portion of it, as, for example, of the transfer of the title. In Kain v. Old, 2 B. & C. 627, 9 Eng. Com. L. 274, there was a sale of a ship. The law required the contract to be in writing. An advertisement which specified with considerable minuteness the characteristics of the ship was delivered to the buyer, and afterwards a bill of sale containing the usual covenants, but omitting a specification set forth in the advertisement. In an action for breach of warranty it was held that the bill of sale was the only instrument of contract, and that the specification of the advertisement could not be relied upon. Mumford v. McPherson, 1 Johns. (N. Y.) 413, 3 Am. Dec. 339, was almost identical in substance and the same result was reached. So where there was a bill of sale of horses sold, including full warranties of title, freedom from incumbrance and right to convey, but silent as to quality, it was held that parol evidence of a warranty of soundness was not admissible. Rodgers v. Perrault (1889), 41 Kan. 385, 21 Pac. R. 287. In Neal v. Flint (1895), 88 Me. 72, 33 Atl. R. 669, the bill of sale was deemed not to constitute a complete contract, and parol evidence was received. So, also, in Hobart v. Young (1891), 63 Vt. 363, 21 Atl. R. 612, 12 L. R. A. 693. v. Hodgkins, 25 N. H. 128; Filkins v. Whyland, 24 Barb. (N. Y.), 379; Collette v. Weed (1887), 68 Wis. 428. In Red Wing Mfg. Co. v. Moe (1885), 62 Wis. 240, 22 N. W. R. 414, the court say that where there is but a mere bill of sale, silent as to the subject of warranty, and having no other purpose or object than to confer the title, parol evidence of warranty may be received. Hubbard v. Marshall, 50 Wis. 322, 6 N. W. R. 497, and Hahn v. Doolittle, 18 Wis. 196, 86 Am. Dec. 757, were distinguished. 1 A memorandum of the sale, enumerating the goods and price, and receipting for payment, is such a bill of parcels, and does not exclude an oral warranty. Perrine v. Cooley (1877), 39 N. J. L. 449; Foot v. Bentley (1870), 44 N. Y. 166, 4 Am. R. 652; Irwin v. Thompson (1882), 27 Kan. 643; Filkins v. Whyland (1856), 24 Barb. (N. Y.) 379; Sutton v. Crosly (1869), 54 Barb. 80; McMullen v. Williams (1880), 5 Ont. App. 518; Gordon v. Waterous (1875), 36 U. C. Q. B. 321; Atwater v. Clancy (1871), 107 Mass. 369. 2 Where the writing does contain express warranties in respect of some particulars, oral evidence cannot be received to show warranties in respect of other matters. In such a case "it can no longer be said that the writing does not attempt to express the contract of the parties so far as express warranties are concerned. The presumption then is that it expresses the whole contract as to such warranties." Merriam v. Field, 24 Wis. 640; Smith v. Williams, 1 Murph. (N. C.) 426, 4 Am. Dec. 564; Mullain v. Thomas, 43 Conn. And where the bill of sale does not purport to be the complete contract, parol evidence of warranty may be received. Hersom v. Henderson, 21 N. H. 224, 53 Am. Dec. 185; Webster constituted part of the contract may be received. A fortiori may it be received where the writing was really not part of the contract at all.1 § 1256. How determined. Whether the written instrument does purport to be the complete and final repository of the agreement so as to exclude parol testimony is a question of law for the court, to be determined upon an inspection of the instrument.2 252; Rodgers v. Perrault, 41 Kan. Co. (1890), 79 Iowa, 239, 44 N. W. R. 385, 21 Pac. R. 287. 370. So much of the contract as has been reduced to writing cannot be contradicted by parol. Hutchinson Mfg. Co. v. Pinch, 107 Mich. 12, 64 N. W. R. 729. And where the warranty, as reduced to writing, is vague, "it is equally an invasion of the rule to permit parol testimony to show that it was in fact more definite." Hutchinson Mfg. Co. v. Pinch, supra, citing Stange v. Wilson, 17 Mich. 342; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147. Contract partly oral and partly in writing. But where the contract is made up of letters and conversations, the fact that the seller in a letter made certain representations would not exclude evidence that in a later conversation he made other and more extended representations. Eureka Fertilizer Co. v. Baltimore Copper Rolling Co. (1893), 78 Md. 179, 27 Atl. R. 1035. So, where the contract was made up of letters and conversations, and the letters describe the goods by a certain name, e. g., "Star Poplar," it is competent to show that the agent who sold the goods represented that "Star Poplar" was always dry, although the letters said nothing about that fact. St. Louis Refrig. Co. v. Vinton, etc. 1 When personal property has been sold and delivered with a verbal warranty, a written and different warranty, gratuitously delivered by the vendor to the vendee after the contract of sale has been fully executed, is mere nudum pactum, and will not supersede the verbal warranty. Aultman v. Kennedy, 33 Minn. 339, 23 N. W. R. 528. So where, after an oral warranty, a different written warranty, never agreed to, was handed to the buyer, without his knowledge, among other papers. Valerius v. Hockspiere, 87 Iowa, 332, 54 N. W. R. 136. So where a bill of sale subsequently sent contained no warranty. Foot v. Bentley, 44 N. Y. 166, 4 Am. R. 652. And where there had been a written order for goods which contained no warranty, and the buyer could and did revoke the order, it was held that the field was then open for a new bargain with a warranty, and that the written order was no longer of consequence. Challenge Wind Mill Co. v. Kerr, 93 Mich. 328, 53 N. W. R. 555. 2 Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct. R. 46; Thompson v. Libby, 34 Minn. 374, 26 N. W. R. 1. $1257. Impeaching writing for fraud.— The writing may, of course, be impeached for fraud, and a parol warranty really made may be then relied upon rather than the written one thus shown to be fraudulently imperfect or defective.1 § 1258. Written contract does not exclude implied warranties. But while the fact that the contract was in writing may thus exclude oral warranties, as seen in the preceding sections, and while the fact that an express warranty, in many cases, excludes an implied one, as will be seen in the following section, the mere fact that a contract of sale was in writing does not, of itself, exclude the implied warranties which the law raises in contracts of that sort. As said in a late case,3 "the obligation attached to an executory contract for the sale of goods by the manufacturer or maker cannot be changed by the mere fact that the contract has been reduced to writing. The writing, it is true, is deemed to express the whole agreement of the parties; but since this peculiar liability arises from the nature of the transaction and the relation of the parties, without express words or even actual intention, it will remain as part of the seller's obligation unless in some way expressly excluded. All implied warranties, therefore, from their nature, may attach to a written as well as an unwritten contract of sale. The parties may, of course, so contract with each other as to eliminate this obligation from the transaction entirely. The seller may by express and unequivocal words exclude it, and, in like manner, the buyer may waive it. So, also, the parties may provide for a delivery or inspection of the article 1 Where the buyer cannot read, and the seller fraudulently reduces to writing something other than the warranty orally agreed upon, the buyer may rely upon the latter. Frohreich v. Gammon, 28 Minn. 476. It is competent for the purchaser to prove, in an action to recover the price, that there was a verbal warranty of quality, notwithstanding the existence of a subsequent writ ten warranty, if the latter is void on the ground that it was procured by fraud. Aultman v. Falkum (1892), 51 Minn. 562, 53 N. W. R. 875. 2 Carleton v. Lombard (1896), 149 N. Y. 137, 601, 43 N. E. R. 422; Blackmore v. Fairbanks (1890), 79 Iowa, 282, 44 N. W. R. 548; Gillespie v. Cheney, [1896] 2 Q. B. 59. 3 Carleton v. Lombard, supra. when made, which will operate to extinguish the liability upon acceptance." § 1259. Express warranty as excluding implied warranty. It has been seen in a preceding section that a written warranty excludes the proof of a parol one, and it is equally well settled, as a general rule, that an express warranty excludes the possibility of another and implied one respecting the same subject-matter. Where the parties have expressly agreed upon a warranty, the law must, in the absence of fraud or mistake, conclusively presume that they have included in their express agreement whatever of warranty is to prevail between them. respecting the matter to which it refers. An express warranty of quality, for example, must therefore exclude an implied warranty of quality.' 1 See ante, § 1254. 2 See cases in following note. 3 In De Witt v. Berry, 134 U. S. 306, 33 L. ed. 896, 10 Sup. Ct. R. 536, it is said: "There are numerous well-considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable or fit for their intended use. International Pavement Co. v. Smith, 17 Mo. App. 264; Johnson v. Latimer, 71 Ga. 470; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. R. 359; Shepherd v. Gilroy, 46 Iowa, 193; McGraw v. Fletcher, 35 Mich. 104." To like effect: Bucy v. Pitts Agricultural Works, 89 Iowa, 464, 56 N. W. R. 541; Malsby v. Young, 104 Ga. 205, 30 S. E. R. 854, when the two relate to the same subject-matter. v. Smith, 17 Mo. App. 264; Aultman v. Weber, 28 Ill. App. 91; Forest City Ins. Co. v. Morgan, 22 Ill. App. 198. In Case Plow Works v. Niles (1895), 90 Wis. 590, 63 N. W. R. 1013, there was an express warranty of wheels "against defects in material and workmanship;” it was held to exclude an implied warranty that the wheels should be suitable for the purposes for which they were ordered. "The fact that the limited warranties going to the question of suitableness of the wheels were expressed in the contract, by the strongest implication, excludes and negatives the idea that it was intended that other or more comprehensive warranties should exist, and repels any implica tion of law to that effect. The contract as written must be taken as the final and conclusive evidence of all that was intended or agreed upon. The familiar rule, 'expressio unius est exclusio alterius,' clearly applies. The demand of the purchaser for certain specified warranties indicates that no other were intended or ex An express warranty of certain qualities excludes an implied warranty of other qualities. Case Plow Works v. Niles, 90 Wis. 590, 63 N. W. R. 1013; Dickson v. Zizinia, 10 C. B. 602; Whitmore v. Iron Co., 2 Allen (Mass.), 52; Deming v. Foster, 42 N. H. 165; International Pavement Co. $1260. When relating to different subject.-Whether, however, an express warranty upon one subject will exclude an implied warranty upon another, as whether an express warranty of quality will exclude an implied warranty of title, or vice versa, is a question upon which there may be more room for doubt. It is, of course, possible for the parties by their contract to declare that the expressed warranty is the only one which shall obtain between them, and such a declaration will be effective. There are also cases which seem to hold that the expression of any warranty prevents the implication of any, particularly where the express warranty is also a written one;2 pected. Had the parties intended that there should be an implied war ranty, there was no occasion to make any stipulation on the subject. The one introduced must be taken as cov ering the entire subject; otherwise it would be idle and unmeaning. Adjudicated cases on this point are numerous and conclusive. We have not been referred to any decision expressly on the point to the contrary. Dickson v. Zizinia, 10 C. B. 602; Chanter v. Hopkins, 4 Mees. & W. 399; Baldwin v. Van Deusen, 37 N. Y. 487; De Witt v. Berry, 134 U. S. 306; Carle ton v. Lombard, 72 Hun, 254; Whitmore v. South Boston Iron Co., 2 Allen, 52; Deming v. Foster, 42 N. H. 165; Budd v. Fairmaner, 8 Bing. 48; Shepherd v. Gilroy, 46 Iowa, 193." But in Alpha Checkrower Co. v. Bradley (1898), 105 Iowa, 537, 75 N. W. R. 369, there was an express warranty that corn-cutting machines should be "well made and finished," and the court, citing the general rule, said that it did not “extend to the exclusion of warranties implied by law, where they are not excluded by the terms of the contract. Thus, an express warranty of title does not exclude an implied warranty of qual ity. A warranty will not be implied in conflict with the express terms of the agreement, but there is no conflict of that kind in this case. We think that it should be implied if it is not expressed that the cutters were reasonably fit for the purpose for which they were intended." 1 In Jackson v. Langston, 61 Ga. 392, the buyer entered into a written contract for the purchase of ferti lizer, and in the contract acknowl edged that the fertilizer "is guaranteed to me as to its effect on crops only as to the analysis of the State inspector," and it was held that this excluded any implied warranty of its fitness. And in Baldwin v. Van Deusen, 37 N. Y. 487, where on the sale of a note it was "agreed that this was a genuine note and not other wise," it was held that the implication of any other warranty had been expressly excluded. 2 But a contract for a piano silent as to warranties, though containing a statement that "there is no agree ment or understanding between the salesman and myself otherwise than herein mentioned," does not exclude the warranty implied by law of |