85 Mo. App. 351 | Mo. Ct. App. | 1900
— This is an action on a promissory note for $235 sold and indorsed to plaintiff after maturity. The judgment in the trial court was for defendant. Defendant bought of D. A. Oolyer a jack for breeding purposes, paid him $150 in cash and executed the note in suit for the balance. The sale was by the following written instrument containing a warranty of the jack:
“Butler, Bates County, Missouri.
“April 19, 1897.
“I have this day sold to C. J. Anderson, one black jack, 'Clarkson/ fifteen hands high, four years old, last fall. This jack is guaranteed to perform only, and this guarantee is null and void when jack serves a reasonable number of mares. “ 'D. A. Colyer.”
Colyer also delivered to defendant the following paper as the pedigree of the jack: “Black jack 'Clarkson/ foaled
Judged by the argument of defendant’s counsel here and evidence for defendant at the trial; and the instructions offered by plaintiff at the trial we are convinced that neither party has given a proper construction to the written warranty.
That warranty clearly does not mean that the jack was capable of connection with one mare only. It means that he could and would serve a reasonable number of mares, considering his age, which might be brought to him at the proper time. On the other hand, it does not mean that he was a good breeder, or sure foal getter.
Any evidence tending to show the jack was not such as warranted should be admitted. But all anterior conversation is improper as the warranty is unambiguous and shows for itself what was wanted by the buyer and intended by the seller.
The instructions which the court gave for the defendant were correct. Number 2 gave proper effect to the plain terms of the warranty, yet the greater part of the evidence admitted for the defense was outside the terms of the writing which must govern the controversy.-
We think all the instructions offered by plaintiff should have been refused. The two which were altered by the court
It was proper to show what would be a reasonable number of mares for the jack to serve in a season, and therefore instruction number 2 for plaintiff should not have been given. Number 3 as asked by plaintiff was properly refused since it seems to restrict the jack’s capacity to one act. The same may be said of number 4. The court properly altered these. Number 5 is confusing and is essentially wrong in conveying the idea that if the jack could simply perform the act of sexual intercourse the warranty was fulfilled.
It is true that by instruction the court withdrew much of the evidence which was outside and beyond the scope of the written warranty, but there was a great deal of this and we are fearful that the jury may have been confused by its admission. At any rate the criticism we have made of the instructions shows that there ought to be a new trial.
We will add that, the pedigree of the jack is not embraced in the warranty and all reference thereto in connection with the warranty can only tend to confusion and possibly lead to wrong results.- The statement therein that the jack “from his breeding is bound to be an extra breeder” was clearly an expression of a mere opinion, especially in the light of the other paper which plainly limited the scope of the warranty to an ability to serve a reasonable number of mares.
The judgment is reversed and the cause is remanded.