dissenting.
This contract of sale was evidenced by a written instrument which is not a mere bill of parcels or incomplete memorandum, but is a full, formal bill of sale apparently complete,, and containing various stipulations. The opinion seems to hold that oral evidence should be received to add to these written stipulations an oral stipulation of warranty or guaranty concerning the property sold. From this we dissent.
While the cases cited in the opinion sustain the general proposition that independent, collateral stipulations may be shown by oral evidence in addition to those expressed in writing, they do not to our minds sustain the particular proposition, that an oral warranty or guaranty concerning the property sold, is a stipulation independent of and collateral to the contract of sale, and one which may be added by parol to those expressed in the writing.
The very purpose of writing out the various stipulations of a contract is to avoid disputes as to what stipulations were or were not in fact finally made. When a warranty or guaranty as to the subject matter of a sale is made during the negotiations for a sale, it becomes a part and a material part of the contract of sale. It is a stipulation that would naturally be expressed when the final terms of the sale are reduced to writing. If it be omitted from the written instrument made and adopted by the parties as the evidence of their contract, it should be held as finally omitted from the contract itself. Wc think the rule thus stated is fully sustained by the great weight of authority. We cite the following cases, and refer to the numerous other cases cited in these: De Witt v. Berry, 134 U. S. 306; Seitz v. Brewers’ Co. 141 U. S. 510; Vein Winkle v. Crowell, 146 U. S. 42; *86Graham v. Eisner, 28 Ill. App. 269; Rodgers v. Perrault, 41 Kansas, 385; Johnson v. Powers, 65 Cali. 179; Boardman v. Spooner, 13 Allen, 361; Frost v. Blanchard, 97 Mass. 155; Galpin v. Atwater, 29 Conn. 93, 100; Wilcox v. Cate, 65 Vt. 478; Thomson v. Gortner, 21 Atlantic, Rep. 371 (Md.). In Naumberg v. Young, 44 N. J. L. 331, the court in an elaborate opinion reviewed the cases and in vigorous language affirmed the rule that an oral warranty or guaranty could not be added to a contract expressed in writing. Indeed, our own court has recognized and acted upon this rule. In Storer v. Taber, 83 Maine, 387, there was a written bill of sale less formal and less complete than the one in this case. The court said (p. 388,) : " It was correctly ruled at the trial that the writing did not contain a warranty of soundness, and that none could be affixed to it byparol.”
In Osgood v. Davis, 18 Maine, 146, it was held that an oral warranty of title could not be added to a written assignment of a stock certificate. The court cited as authority, Powell v. Edmunds, 12 East, 6, in which it was held that an oral warranty of quantity could not be added to the written conditions of a sale of timber.
To this wholesome rule we think the court should adhere. We deprecate any departure from it.