Baca v. Fleming

Citations

• 25 N.M. 643
• 187 P. 277

Syllabus

<p>SYLLABUS BY THE COURT</p> <p>1. Where the terms of a written contract are silent as to the subject-matter of a parol contemporaneous agreement, and such parol agreement does not contradict the terms of the written contract, a party may recover for a breach of such parol agreement, and the proof of its contents is admissable. But such parol agreement, to be enforceable, must be in respect to a matter distinct from that covered by the written contract, and a party to such a contract cannot by parol set up in the guise of a separate contract something which devitalizes the writing- and changes or aborts the stated purpose thereof.</p> <p>P. 646</p> <p>2. Where A enters into a written contract with B. for the purchase of an automobile, and by the terms of said.written contract A. agrees to keep said automobile in repair and to replace the broken parts, and to at all times during- the continuance of the contract keep the automobile in as good repair as it was at the time of purchase, natural wear and tear excepted, such written contract is inconsistent with the terms of an alleged oral warranty by which it was alleg-ed B. warranted all the metal parts of the machine against breakage, and agreed to replace at his expense 'all broken or defective parts. . P. 647</p> <p>3. A conditional vendee cannot, before title is vested in him, recover g-eneral damages for a breach of warranty.</p> <p>P. 649</p> <p>4. An original complaint, which states no cause of action, cannot be remedied by a supplemental complaint, setting- up matters that have occurred since the commencement of the suit. P. 649</p>