De Witt v. Berry’s Empirical Analysis

Citation profile

44 federal appellate · 11 district · 37 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 107 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““In the case of The Reeside, 2 Sumn. 567 , Fed. Cas. No. 11,657, Mr. Justice Story said: T apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori not in order to contradict them. An express contract of the parties is always admissible to supersede or vary or control a usage or custom, for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties.’ The principle is that, while parol evidence is sometimes admissible to explain such terms in the contract as are doubtful, it is not admissible to contradict what is plain, or to add new terms. Thus, where a certain written contract was for ‘prime singed bacon/ evidence offered to prove that by the usage of the trade a certain latitude of deterioration called ‘average taint,’ was allowed to subsist before the bacon ceased to answer that description, was held to be inadmissible. 1 Greenl. Ev. § 292, note 3; Tates v. Pym, 6 Taunt. 446; Barnard v. Kellogg, 10 Wall. 383 ; Bliven v. Screw Co., 23 How. 420 ;”

   2 later decisions quote this exact passage · from the majority
   e.g. Reid v. Diamond Plate-Glass Co. · Rail & River Coal Co. v. Paisley

2. ““There are numerous well-considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable or fit for their intended use. international Pavement Co. v. Smith, 17 Mo. App. 264 ; Johnson v. Latimer, 71 Ga. 470 ; Cosgrove v. Bennett, 32 Minn. 371 [ 20 N. W. 359 ]; Shepherd v. Gilroy, 40 Iowa, 193 ; McGraw v. Fletcher, 35 Mich. 104 . “Nor is there any conflict between these authorities and others like them on the one hand, and those on the other, which hold that goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable, or as suited to the known purpose of the buyer. Dushane v. Benedict, 120 U. S. 630 , 636 [ 7 Sup. Ct. 696 , 30 L. Ed. 810 ], and cases there cited. It is the existence of the express warranty, or its absence, which determines the question. In the case at bar there was such an express warranty of quality in terms. Not only that, but there was a sample delivered and accepted, as such. The law is well settled that, under such circumstances, implied warranfifis do not exist. Mumford v. McPherson, 1 Johns. [N. Y.] 414 [ 3 Am. Dec. 339 ]; Sands v. Taylor, 5 Johns. [N. Y.] 395 [ 4 Am. Dec. 374 ]; Beck v. Sheldon, 48 N. Y. 365 ; Parkinson v. Lee, 2 East, 314. In Jones v. Just. L. R. 3 Q. B. 197, 202, quoted by Air. Benjamin in ids work on Sales, 057, Alellor, J., delivering the opinion of the court, laid down among others the following rule: ‘AVliere a known descri”

   1 later decision quote this exact passage · from the majority
   e.g. General Fireproofing Co. v. L. Wallace & Son

3. ““Bearing the above principles in mind, the loading general rule respecting the admissibility o£ extrinsic evidence to affect what is in writing is that parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a valid written instrument. The common-law rule may be traced back to a remóle antiquity. It is founded on the inconvenience that might result if matters in writing, made by advice and on consideration, and intended finally to embody the entire agreement between the parties, were liable to be controlled by what Lord Coke calls ‘the uncertain testimony of slippery memory/ When parties have deliberately put their mutual engagements into writing, in language which imports a legal obligation, or, in other words, a complete contract, it is only reasonable to presume that they have introduced into the written instrument every material term and circumstance. Consequently all parol testimony of conversations held between the parties, or of declarations made by either of them, whether before or after or at the time of the completion of the contract, will be rejected, because such evidence, while deserving far less credit than the writing itself, would inevitably tend, in many instances, to substitute a new and different contract for the one really agreed upon, and would thus, without any corresponding benefit, work infinite mischief and wrong. Apart from all considerations of convenience, positive enactment has imposed the same rule in several”

   1 later decision quote this exact passage · from the majority
   e.g. Reid v. Diamond Plate-Glass Co.