#### Spencer Lumber Company v. Dover.

Opinion delivered June 26, 1911.

1. Sale of chattels — fraud as defense. — One sued on a note for the purchase price of machinery can not be heard to say, in impeachment *489of the contract of sale, that he was induced by fraudulent representa- ■ tions to make the purchase if he had had ample opportunity to operate the machinery before the note was executed. (Page 489.)

2. Same — evidence—hearsay.—Where a bill of sale recited the sale of so many feet of lumber, and one of the defenses to a suit on the purchase money was that there was a shortage in the lumber, such shortage can not be proved by a witness whose information was derived from what others told him. (Page 490.)

Appeal from Polk Circuit Court; Jeff T. Cowling, Judge;

affirmed.

Elmer J. Lundy, for appellant.

Fraud and deceit with reference to the condition of the mill and machinery was available as a defense by way of counterclaim, and evidence outside of the bill of sale was admissible. The bill of sale, being merely an instrument for the passing of ownership, does not preclude a showing of fraud on the part of the vendor. 38 Ark. 334; 6 Enc. of Ev. 22; Id. 16; 20 Cyc. 112; 43 Ark. 439, 448; 60 Ark. 387; 156 Mass. 135; 22 Ark. 454.

J. I. Alley, for appellee.

The only warranty in the bill of sale was as to the title, and parol evidence was not admissible to show any other warranty. 38 Ark. 334; 83 Ark. 240; Id. 105; 80 Ark. 505. Having had the privilege of inspection and in fact having taken possession of and used the property for more than a month before executing the note, appellants are estopped to plead as a defense any defective condition of the machinery which by ordinary diligence could have been discovered. 125 U. S. 247; 135 U. S. 609; 76 111. 71; 80 111. 477; 6 Ind. 219.

Hart, J.

This appeal is prosecuted to reverse the judgment upon a directed verdict in a suit on a promissory note for six hundred eighty-three dollars and three cents ($683.03). The note is dated' May 2, 1910, and was given for the purchase price of certain machinery and lumber and logs. Appellant refused to pay'the note, and, when sued by appellee, set up by way of defense certain alleged fraudulent representations in regard to the condition of the machinery when sold, breach of warranty and damage in consequence. The machinery was purchased on the first day of March, 1910, and appellant immediately went into the possession of the same and began operating it. The bill of sale does *490not contain any express warranty of the machinery. It will be noted that the note given for the purchase price of the machinery was executed on May 2, 1910, one month after the bill of sale was executed. During this time appellant was operating the machinery, and when they gave the note for the purchase price, they had had ample time and opportunity to inspect the machinery and to know what defects in it, if any, existed. This being so, they can not now be heard to say, in impeachment of the contract of sale, that they were induced by fraudulent representation to make the purchase. James v. Bocage, 45 Ark. 284; J. I. Case Threshing Machine Co. v. Bailey, 89 Ark. 108.

According to the bill of sale, “about 50,000 feet of lumber and logs were sold.” Another defense set up by appellant to the suit is that there were only 38,000 feet of logs and lumber. On this point appellant introduced as a witness, D. J. Spencer, its secretary and manager. It developed upon his cross examination that he had no personal knowledge of the amount of lumber on hand, and that his knowledge was derived solely from what other employees of appellant told him. This was hearsay, and insufficient to prove the shortage in the lumber.

It follows that the judgment must be affirmed.