Subsequently the plaintiff, through Captain Main, offered *3,2501. for the yacht, and thereupon the defendant wrote to Captain Main the following letter. 66 "5, ROYAL CRESCENT, BRIGHTON, 4th March, 1860. "SIR,-I beg to thank you for your favour, to which I have not been able previously to reply. I am sorry you still fancy. the Czarina will require so much money laid out upon her, and still must say that I cannot help thinking her refitting will not be nearly so costly as you seem at present to imagine. Her masts have been examined and found as sound as when put in, -since I wrote last, I think. Further, I regret that the gentleman who wishes to purchase her thinks my figure of 3,500l. too much, for honestly I believe she would be a very cheap ship to any one at that price. It is very good of you to recommend her. I am sure you can do so conscientiously, for she is a glorious vessel, and really I quite abhor letting her go. As, however, my military duties will certainly prevent my sailing this summer, at all events, I am willing to meet your offer in what, I hope, both yourself and the intended purchaser will deem a liberal spirit, and am satisfied to split the difference between my price and the offered 3,2501., which latter sum I really don't think I am justified in accepting. Please let this have all due consideration, and favour me with a line at your earliest convenience; and with thanks for your polite letter, I remain, Sir, your faithful Servant, The plaintiff replied as follows: 6: "THOS. F. BAILY." "8, EATON SQUARE, LONDON, March 8, 1860. SIR,-Captain Main forwarded to me yesterday by post your letter of the 4th. I am pleased to find by it that he has conducted the correspondence with reference to the purchase of the Czarina to your satisfaction. Having myself but an imperfect knowledge of the merits of ships as regards their condition and value, I was glad to employ *one competent to go into such matters, and a person in whom I could trust. Mr. Main's private opinion to me was, that I ought not to give more than 3,000l. for the Czarina. If I went beyond that sum, it was my intention to build a new vessel, for at the present prices a short step beyond 3,000l. would suffice to build a vessel of 200 tons, and old vessels depreciate so very rapidly that what are gains in the first purchase are losses very much more at a subsequent sale. However there was much to make me desirous of buying the Czarina. She appears sound; her stores are good, and her size suitable. With these convictions I advanced my biddings STUCLEY v. BAILY. [411] 2501. I cannot undertake to make a further offer of 1257., unless you will throw in the various stores which belong to the vessel but are not named in the catalogue, such as charts, colours, chronometer, pikes and other odds and ends which probably I should not purchase. But they having been a portion of the vessel, it is hardly worth while to separate them from it. I have endeavoured to be very plain and straightforward in this matter, and have represented just what I feel on the subject. Should you think proper to let me have the Czarina upon these conditions, I hope you will allow your captain to work her round to Southampton, and there give her up, stores and all, to Mr. Main for me, I paying all expenses attending such a voyage. Yesterday I went to Chatham to see the Czarina for the first time. I consider she requires all the repairs mentioned by Captain Main, painting throughout; but she is a fine vessel and appears to be well cared for. Should you sell me the vessel, you would very much oblige by informing whether your captain would then be disengaged . . . I hope this matter may now be concluded one way or the other, without further delay, as if I build I would set to work immediately. "I remain, Sir, yours faithfully, "G. S. STUCLEY." The defendant wrote in reply accepting the plaintiff's offer, and the plaintiff then wrote to the defendant a letter containing the following passages: "8, EATON SQUARE, March 12, 1860. "DEAR SIR,-I shall be glad to purchase the vessel upon the terms agreed upon. The next matter for arrangement is about the payment. Of course, I shall require a few days for the selling a sufficient sum out of various securities. Will you tell me, when the money is ready, into which Bank you desire that it should be paid? I certainly think I could not have purchased a sounder or better ship. "Believe me, dear Sir, yours faithfully, "G. S. STUCLEY." On the 21st of March the plaintiff and Captain Main went to Chatham; and, according to the evidence of the latter, Captain Williamson then stated that he had ripped the mast-coats off, and had the masts regularly surveyed. A few days afterwards the vessel was taken to Southampton, and the purchase-money was paid. On the vessel being fitted out for a voyage to the Mediterranean, the masts were found to be rotten. On the 17th May, Captain Main wrote to the defendant stating that it was on the guarantee of Captain Williamson that he had advised the plaintiff to purchase the vessel, but that when about to put on new mast-bolts it was discovered that the masts were quite rotten; and that the vessel's copper was as bad as could be, and that he was compelled to take it off and recopper her all over. It was objected, on behalf of the defendant, that there was no evidence of a warranty, and that in order to maintain the action the plaintiff was bound to prove a sale and transfer of the vessel, as required by "The Merchant Shipping Act, 1854" (17 & 18 Vict. c. 104). The plaintiff's counsel then put in the bill of sale, which was dated the 23rd of April, and registered the 29th of May, 1860. It was in accordance with the form prescribed by Schedule E of the Merchant Shipping Act, 1854 (1). It was then objected, on behalf of the defendant, that the bill of sale was the actual contract between the parties, and that as it contained no warranty the plaintiff was precluded from setting up a warranty. Harnor v. Groves (2) was referred to. The learned Judge ruled that the letters contained a warranty, and that the plaintiff was not precluded by the bill of sale from setting it up. The defendant's counsel then submitted that warranty was a mixed question of law and fact, and, for the purpose of showing that there was no warranty, he tendered evidence of what took place at the interviews between Captain Main and Captain Williamson on the 11th of February, and the plaintiff and Captain Williamson on the 21st of March. The learned Judge ruled that, as the letters contained a warranty, the proposed evidence was not admissible, and a verdict was entered for the plaintiff with 1807. damages. Karslake, in last Easter Term, obtained a rule nisi for a new trial on the ground of misdirection on the part of the learned Judge in ruling that the letters amounted to a warranty, and excluding evidence on the part of the defendant of all the facts of the case for the purpose of showing that the letters did not amount to a warranty; and also on the ground that the learned Judge was wrong in ruling that the bill of sale did not contain the whole contract and exclude a warranty; against which Montague Smith and H. T. Cole now showed cause: STUCLEY v. BAILY. [412] (They argued, first, that the letters contained a warranty. *On this point the following authorities were cited: Chanter v. [413] (1) See now Merchant Shipping Act, 1894, Sched. I., Form A. (2) 100 R. R. 535 (15 C. B. 667). R.R.-VOL. CXXX. 38 STUCLEY v. BAILY. [414] Hopkins (1), Cave v. Coleman (2), Hopkins v. Tanqueray (3), of showing that they did not contain a warranty. (POLLOCK, C. B.: There is a distinction between an instrument which professes to be a contract, as, for instance, an agreement inter partes, and where certain terms are contained in a number of letters, which are only evidence of a contract.) In Dobell v. Hutchinson (6), where it was held that letters, written after a sale of land by the vendor to the vendee, might be connected with the particulars and conditions of sale so as to constitute a memorandum in writing within the 4th section of the Statute of Frauds, the decision proceeded on the ground that the letters expressly and distinctly referred to the conditions of sale which were signed by the vendee. (POLLOCK, C. B.: Here there is nothing which professes to be a formal contract, but the contract is to be collected from a number of letters; then why is not parol evidence admissible to show the real intention of the parties when they wrote them?) The contract being in writing, it is for the Court to construe it. (CHANNELL, B.: Evidence is admissible to explain an ambiguity in a written contract: Smith v. Thompson (7).) In Allen v. Pink (8), Lord ABINGER said that it was a general principle, that if there has been a parol agreement, which is afterwards reduced by the parties into writing, that writing alone must be looked at to ascertain the terms of the contract." Karslake and Kingdon appeared in support of the rule, but were not called upon to argue. POLLOCK, C. B.: I am of opinion that the rule ought to be absolute for a new trial, on the ground that the evidence of the conduct of the parties should have been submitted to the jury. If it was competent for the jury to consider what the parties wrote to each other, they ought also to have heard what they said to each other, what was their conduct, what passed between them or came to the knowledge of either, which would show their real (1) 51 R. R. 650 (4 M. & W. 399). (3) 100 R. R. 271 (15 C. B. 130). (5) 14 R. R. 825 (3 Camp. 506). (7) 79 R. R. 401 (8 C. B. 44). intentions. I do not express any opinion on the point, but I entertain considerable doubt whether the letters can be considered as a warranty, or anything more than a mere representation. But the conduct of the parties, what each said to the other either before or after the contract, ought to be submitted to the jury. If, at an interview before the correspondence, the plaintiff said to the defendant, "I want to buy your vessel," and the defendant replied, "very well; the price [is] so and so," adding, "she is sound," but never intending to warrant her; that, though falling very far short of conclusive evidence, might be important as showing the meaning of the transaction. It is said that where a warranty is contained *in a written instrument it cannot be altered by parol evidence, but that is not so here. There is only a correspondence, and that may be explained by the conduct of the parties. MARTIN, B.: I am of the same opinion. In the absence of knowing what was the exact evidence tendered by the defendant's counsel, it is difficult to say whether it was admissible. Whether parol evidence is admissible or not must depend upon what it is, and it seems to me that, in case of an objection to such evidence, the most satisfactory way is to take down in writing the question proposed to be put, so that the Court which may have to adjudicate upon its admissibility, may know what it really was. For many years I have made it a practice, whenever an objection is taken to the admissibility of parol evidence, to take down the question in writing, so that the Court above may understand what they have to deal with. 66 Upon the other point, I entertain a strong opinion that there was no warranty. This is an action on a warranty, properly so called, in respect of the quality of a ship. The best definition of a warranty is that given by Lord ABINGER in Chanter v. Hopkins (1): "A warranty is an express or implied statement of something which the party undertakes shall be part of a contract; and though part of the contract, yet collateral to the express object of it." He then goes on to point out that in many of the cases "the circumstance of a party selling a particular thing by its proper description, has been called a warranty; and the breach of such contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfil; as if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a (1) 51 R. R. 650, 654 (4 M. & W. 399, 404). STUCLEY v. BAILY. [415] |