
    Asa B. Hogins versus Nathaniel Plympton.
    In an action by a vendee, upon a written agreement of the vendor, by which he undertook to ship to the vendee a certain quantity oft( good fine wine,” and acknowledged the receipt of payment, it was held that these words, in this instrument, did not amount to a warranty that the wine was of any particular quality, not only because they were too indefinite, but because the instrument in which they were used was not the contract of sale 3 and that parol evidence was admissible, to show the actual terms of the sale and that the defendant shipped the wine selected by the plaintiff.
    Assumpsit. The first count alleges, that on November 3, 1827, the defendant, in consideration that the plaintiff would buy of him 200 dozen bottles fine old Sicily Madeira wine and 35¿ dozen bottles good Hermitage wine, to be sent to New Orleans, and would give him Benjamin Crombie’s note for $ 1024-98, payable in six months and grace from the 31st of October, 1827, promised to put on board the brig Charlotte wines of the descriptions and in the quantities above mentioned, addressed to the plaintiff or his order at New Orleans; that the plaintiff bought such wines of the defendant and delivered him Crombie’s note in payment; that the defendant did not send the wines he agreed to, but sent 200 dozen bottles of a mixture of inferior, bad and corrupt wines, and not fine, and which were of no value, and 35| dozen bottles of wine not of the denomination of Hermitage, but of bad, inferior wine, and which was sour and of no value.
    The fifth count pursues nearly the language of the defendant’s written agreement, which was as follows : — ‘ Boston, November 3, 1827. We agree to put on board the brig Charlotte, 200 dozen good fine wine and 35 \ dozen good Hermitage, neatly packed in sugar boxes, and send the same to the address of Asa B. Hogins or his order, New Orleans, and we acknowledge to have received our pay in full for the above wines, in a note signed by Benjamin Crombie, of Boston, for % 1024-98, payable in six months and grace from October 31, 1827.”
    At the trial before Wilde J. the witnesses called by the plaintiff testified that the Madeira wine sent to him by the defendant was a bad, mixed article, and not fined ; and that the Hermitage was sour.
    The defendant offered the deposition of one Osgood, who testified that the plaintiff examined and tasted the wine which was afterwards sent to him, and selected the butts out of which it should be drawn, and that the wine thus selected was put up in the manner he directed and sent according to his orders. The plaintiff objected to the admission of this testimony, but the judge overruled the objection and the deposition was read.
    The judge instructed the jury, that if they believed the testimony of Osgood, and that the plaintiff had the wine he selected and bought, the written agreement would not amount to a warranty as set forth in the declaration ; that if Osgood’s testimony was believed, the written agreement or promise before recited was only an agreement to deliver the wine which the plaintiff had selected, and no warranty, and that the words “ good fine wine” in that agreement were nothing more than the name that was given to it; that wine of the most inferior kind, if it were only good of the kind, would fulfil the defendant’s agreement as proved.
    The verdict was for the plaintiff, and damages were assessed at $ 21.
    The plaintiff moved for a new trial, on the ground that Osgood’s testimony ought not to have been admitted ; and because the jury were misdirected; and because, in respect to the amount of damages, the verdict was against evidence.
    
      March 31st.
    
      March 8th
    
    
      S. Hubbard and Fletcher,
    in support of the motion, insisted that the written contract was a warranty of the quality of the wines ; that the white wine was to be good and fine, that is, fined, and the Hermitage to be good. Hastings v. Lovering, 2 Pick. 214 ; Tye v. Fynmore, 3 Campb. 462. The testimony of Osgood was introduced, not to prove that the wine delivered was good, but that the sale was by sample; it was therefore inadmissible, because it varied the written contract. Gardiner v. Gray, 4 Campb. 144 ; Meyer v. Everth, ibid. 22 ; Mumford v. M'Pherson, 1 Johns. R. 414; Whitwell v. Wyer, 11 Mass. R. 6 ; Lano v. Neale, 2 Stark. Rep. 106; Stackpole v. Arnold, 11 Mass. R. 27 ; Erwin v. Saunders, 1. Cowen, 249.
    S. D. Parker and Field, for the defendant,
    cited Bradford v. Manly, 13 Mass. R. 139 ; Davenport v. Mason, 15 Mass. R. 85 ; Brown v. Gilman, 13 Mass. R. 158.
    
      
       See Salem India Rubber Co. v. Adams, 23 Pick. 256; Winsor v. Lombard, 18 Pick. 60; Coolidge v. Brigham, 1 Metc. 547.
    
   Shaw C. J.

delivered the opinion of the Court. Two questions are raised in this case; first, whether the writing produced and relied upon by the plaintiff constituted a warranty of the quality of .the wines ; secondly, whether the testimony of Osgood was admissible.

We are of. opinion that the writing in question cannot be considered as a warranty, that the wine was of any particular description or quality.

One objection is, that the words are too uncertain and indefinite to constitute such warranty.

But another, and as it appears to us, a decisive objection is, that the written agreement relied on does not purport to be a contract of sale; but it presupposes a sale already made, and is of itself a promise and undertaking to ship the wine to New Orleans, packed and addressed in the manner therein specified. There is no doubt that in a contract of sale, words of description are held to constitute a warranty, that the articles sold are of the species and quality so described. But the warranty must be upon the sale, and one of the terms of the contract of sale. Any subsequent or collateral contract of warranty, must arise from an express promise or' undertaking to warrant, and that upon a new consideration, distinct from that of the sale itself.

And this, in effect,- decides the other question, as to the admissibility of Osgood’s testimony. The objection rests upon the maxim, that where parties have reduced their contract to writing, parol evidence cannot be admitted to alter or control it. But if the written agreement does not purport to contain the contract of sale or to recite the whole of the contract of the parties, then parol evidence was admissible, to show what the terms of the contract of sale were, and that the wine mentioned in the contract to ship was the wine actually contracted for by the plaintiff, and that the same wine was shipped.

To the position, that where a writing does not express the whole contract, parol evidence is admissible, the case of Bradford v. Manly, cited in the argument, is in point. There the bill of parcels mentioned the sale of “cloves,” leaving it uncertain what kind of cloves was meant, and the Court admitted parol evidence of collateral matter, not repugnant to the written evidence, showing that the contract had reference to cloves of a particular kind.

As the defendant does not object to the verdict, and as the motion on the part of the plaintiff to set it aside, on the grounds now considered, is not sustained, the result will be

Judgment on the verdict.  