103 Ky. 303 | Ky. Ct. App. | 1898
delivered the opinion of the court.
This suit was instituted by appellee in October, 1895,, on four notes aggregating about $690 which were executed by appellant to the assignor of appellee in the sum
The only error relied on in this appeal for reversal is 4he refusal of the trial court to instruct the jury upon
The testimony in the case shows that appellant took possession of these horses at the time he bought them, in July and August, 189á, and there is nothing to show that he did not make use of them as his own property after he acquired possession under the purchase. The only tender, or demand for specific performance of the contract he ever made of appellee’s assignor, was in writing postal cards to him requesting him to furnish the certificates of registration.
The title to the horses passed by the sale to the vendee, and constituted, not only a substantial part of the consideration for the notes sued on, but the main consideration; as it is evident from the prices of the stock and the vague understanding on both sides as to their pedigree, that comparatively small importance was attached to this part of the consideration. And the question for our determination is, does this passage of the chief consideration for the notes sued on from the vendor to the vendee preclude appellant from relying on the alleged contract as to the pedigrees, as a condition precedent to the right of appellee’s assignor to institute this action?
It seems to us that this rule laid down by Mr. Bénjamin is an equitable and salutary one. Appellant has a complete remedy in damages for any injury which he has received for a breach of the condition precedent, in an action on the warranty; and it would be exceedingly unjust for a party to a contract to accept the great bulk of the consideration of the bargain, keep, use and hold it as his own, and then after a long interval of time pay practically nothing therefor because he did not receive the whole. In cases where the thing sold is not specific and the property has not passed by the sale, a vendee can very properly refuse to receive the thing proffered to him in the performance of the contract, on the ground that it does not correspond with the contract of purchase or that the conditions expressed in the contract have not been performed; but if a specific thing like a horse, has been sold with a warranty of its pedigree, under such circumstances that the property passes with the sale, and the vendee is thus benefited by the partial execution of the contract and becomes the owner of the property, he should not be permitted, after so great an interval of time, without any steps having been taken by him to rescind the contract, to treat the failure of the warranty as a condition broken, but should have recourse .to an action for damages for the breach of the warranty.
Appellant was vested with the complete legal title to this property from the time he took possession of it under the salé, and with power to dispose of it if he had so