The opinion of the court was delivered by
IIbbard, J.On trial in the county court, the plaintiff offered the bill of sale, and asked the court to decide that the terms of it imported a warranty of the soundness of the horse. But the court decided otherwise. The plaintiff also requested the court to leave it to the jury, upon the parol and written evidence, to find a warranty. This request also the court disregarded. It is a familiar principle of law, that no particular form of words is necessary to constitute a warranty ; and, when the contract rests in parol, the whole testimony is submitted to the jury, for them to find from it what was the intention and understanding of the vendor. But when the sale is consummated by a written transfer, without a clause of warranty inserted, the vendee is not permitted to show the representations and assertions made previous to the execution of the written contract; because the presumption of law is, that the writing contains the whole of the contract. Reid v. Van Nostrand, 1 Wend. 424.
It is also a familar principle of law, that written instruments are to receive their construction from the court, and, for the purpose of ascertaining their meaning, are never submitted to the jury.
This view of the case brings us back to the bill of sale, for the purpose of determining whether any thing therein contained amounts to a warranty. While we hold that no particular form of words, or phraseology, is necessary to constitute a warranty, we are not to forget that something is necessary that shall be certain, and expressive of the intention of the vendor. There must be something positive and unequivocal concerning the thing sold, which the vendee relies upon, and which is understood by the parties, as an absolute assertion concerning the condition or quality of the thing sold, and not the mere expression of an opinion. The only clause in this contract, upon which the plaintiff relies to constitute a warranty, is the naked expression, “considered sound.” It would be putting a very liberal construction upon words, and giving great latitude to construction, to say that that was an assertion, or undertalcing, that the horse was sound. When the contract remains in *529parol, the time, manner, occasion, and all the countless circumstances that attend a transaction, go to the jury together, for them to gather the intention from the whole. But when the contract is in writing, the writing only is permitted to speak, and the import of its language is to be judged of by the court.
The case of Beeman v. Buck has been cited; — but that case differs from this. The contract in that case was by parol, and there the court very properly submitted it to the jury, for them to find whether certain representations, in regard to the soundness of the horse, were intended and understood by the parties as an engagement that the horse was sound, or whether they were intended as a mere expression of opinion. The jury found the former, and, so long as the testimony tended to prove the fact, their finding is conclusive. Upon this part of the case the court find no error.
On the trial the plaintiff offered the depositions of two witnesses, which tended to prove the unsoundness of the horse. The depositions were objected to by the defendant, and excluded by the court. The objection taken to them is, that they do not sufficiently identify the horse in question. The rale of law in relation to the admission of testimony is, that, if it tend to prove the issue, it is admissible. In this case the important-allegation, and one that must be proved, was, that the horse was unsound. The only fact, which the depositions tended to prove, was, that a certain horse was unsound. Having that fact, the jury are to find whether it is the same horse.
The horse in controversy is described in the plaintiff's declaration as a bay horse ; in the bill.of sale, he is called a bay horse; and the horse spoken of in the depositions is a bay horse. The testimony in these depositions tended to prove the issue, and they were admissible.
But it is said that there was sufficient proof without them, to establish the unsoundness of the horse. Of that fact, we have not the means, nor is it our province, to judge: That, at least, does not appear to be the ground of their exclusion. Being legal and pertinent testimony to prove the issue, we are only called upon to decide upon the legality of their rejection. Sitting as a court of errors, we have no discretion to exercise, after discovering an error in law. If we sat to decide upon applications for new trials, — in determining which, the court are allowed to exercise a measure of legal discretion, — we *530might then look farther into the case, and see what probably would be the effect of this testimony, and, in view of the whole case, whether justice would require a new trial. But that not being the sphere in which our judgment is to be exercised, we can only say that the depositions were legal and pertinent to the issue, and should have been admitted ; and, their rejection being erroneous, for that the judgment of the county court must be reversed.