(dissenting in part). I am unable to agree with the conclusions reached by my associates on some of the questions involved in this case. The parties to this action entered into a written contract. The contract covers three pages of closely typewritten matter. It covers the transaction between the parties in detail. It is in all respects definite and unambiguous. There is no pretense or claim here of any fraud, accident, or mistake. The defendants merely assert that in the negotiations preceding the execution of the written contract there was a warranty as to the quality of the hay, and they claim the right to show and recover upon such warranty. Upon the trial, the plaintiff objected to the evidence offered relating to the alleged oral warranty, on the ground that the oral negotiations had been merged in the written contract; and that parol evidence was inadmissible to add to or vary a written instrument. In my opinion the objection was well taken. Under our laws “the execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.” Civ. Code 1913, § 5889. This section is applicable to the contract here. “The rule is well settled,” says Mechem (Mechem, Sales, § 1254), “that where the parties have reduced to writing what appears to be a complete and certain agreement, importing a legal obligation, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the whole of the agreement between the par*597ties, and parol evidence or prior, contemporaneous, or subsequent conversations, representations, or statements, will not be received for tbe purpose of adding to or varying tbe written instrument. If, therefore, sucb a writing exists between tbe parties, and it contains no warranty at all, no warranty can be added by parol.” Ruling Case Law says: “As a general rule a contemporaneous oral warranty cannot be ingrafted on a written contract or bill of sale wbicb on its face purports to evidence the entire agreement of tbe parties, irrespective of whether it is silent on tbe matter of warranties or not. Tbe reason for this is that a warranty, if made at all, forms a part of tbe contract of sale, and is not a collateral contract, and therefore proof of sucb warranty cannot be added to tbe written agreement by parol evidence.” 23 R. C. L. pp. 1399, 1400, § 224.
I therefore believe that tbe evidence as to tbe oral warranty was inadmissible. I also believe that tbe evidence adduced in this case, if admissible, was insufficient to establish tbe warranty alleged.
Tbe majority opinion bolds that in any event there was a breach of tbe warranty implied under § 5981, Comp. Laws 1913. In my opinion this is incorrect. There was no averment of sucb implied warranty of of its breach. Defendants’ counterclaim was based solely upon tbe express warranty. Tbe implied warranty was not an issue. No recovery was sought thereon. It is elementary that a party who seeks to recover for tbe breach of a warranty must, by appropriate averment, show (1) tbe existence of tbe warranty; (2) tbe breach thereof; and (3) tbe resultant damages. 35 Cyc. 446-451.
Tbe written contract was dated October 13, 1917. Under its terms tbe plaintiff sold certain machinery and harnesses to tbe defendants. Tbe articles sold were enumerated, and a price fixed on each article in a list attached to tbe contract. Tbe contract specified that tbe defendants were to pay for sucb articles “55 per cent of tbe invoice price during tbe season of 1915.” Tbe defendants contended that they bad not received certain articles, tbe aggregate list price of wbicb amounted to $134.80. Tbe trial court awarded tbe defendants $134.80 on this account. It seems to me that this was. erroneous. Tbe articles were secondhand. There was no evidence of their value. Tbe price given in tbe list was tbe invoice price of 1915. Tbe defendants bad agreed *598to pay for this property only 55 per cent of $134.80 or $74.14. It seems to me that they should have been allowed to recover that amount only.
I agree with my associates that the evidence justified the trial court in finding that the parties, at the time they measured the hay, in effect, agreed that 512 cubic feet of alfalfa and 343 cubic feet of prairie hay should constitute a ton. I also believe that the findings in the majority opinion as to amount of hay are correct.