Merchants Finance Co. v. Acosta Bros.

— This appeal is from a judgment recovered by plaintiff as assignee of a contract for the purchase by defendants of a tractor, in the amount of the unpaid purchase price, to wit, $865 and interest and $100 attorneys’ fees as provided for in the written agreement.

The defendants alleged in their answer that at the time of their purchase the property was inaccessible to them; that the seller knew that they desired it for the purpose of pulling a six-foot double disc; that the tractor did not have sufficient power to pull such a disc and was for that reason not sound or merchantable; that when they attempted to use it to pull that size disc it broke. At the trial the defendants introduced certain testimony to the effect that some time before the sale they told Mr. Johnson, the seller, that they w.anted the tractor for the purpose of pulling a six-foot double disc. On motion of plaintiff this testimony was stricken out on the ground “that the oral warranty cannot be introduced in a written contract.” It is of this ruling of the court that appellants complain.

The implied warranty declared by section 1771 of the Civil Code, having application to the present case, reads as follows:…