5 S.D. 295 | S.D. | 1894
This is an action upon two non-negotiable notes. The complaint is in the usual form, and alleges an assignment of the notes from the payees to the plaintiff. The answer alleges that the notes were given in part payment of a stallion bought by defendants under the name of the Colman Horse Company, of Whipple, Farley & Co., the payees of the notes, and a warranty thereof in writing as follows: “Colman, D. T., June 25, 1887. Know all men by these presents, that we have this day sold to the Colman Horse Company one gray Norman stallion, ‘Count Rotrow, 487, ’ and he is free from all incumbrance, and their title to said horse is good, and the above-named horse warranted by his importer, George E. Case of St. Peter, Minn., to be, with proper care and handling, to be an average foal getter; and should the above-named horse prove to be-barren, a horse of equal size and value to be put in his place. Whipple, Farley & Co. ” The answer further sets out facts intended to show a breach of warranty; that the horse was not an average foal getter;.and that he was of little or no value for the purpose for which he was bought, which purpose was fully disclosed to the sellers, Whipple, Farley & Co., before and at the time of the purchase and sale. Upon the trial the court directed a verdict for the plaintiff. From the judgment entered upon such verdict the defendants appeal.
The law of warranty in personal property sales is pretty thoroughly covered by our Civil Code (Comp. Laws, § 3627 et seq.). While it is averred in the answer that Whipple, Farley & Co. were informed of the purpose for which the defendants desired the horse, and it perhaps is sufficiently alleged that they knew defendants were relying upon their advice and judgment in so purchasing, it is not alleged nor is there any evidence which it is claimed tends to show, that they knew anything concerning the horse, which, if communicated to defendants, would have destroyed the inducement which led them to buy. There were, then, no facts alleged or proven which
Several exceptions were taken during the progress of the trial as to the admission and exclusion of evidence. Only one of them, however, is presented in argument. 'Appellants contend that the court erred in allowing plaintiff to show that one of these notes given by defendants for this horse had gone into judgment, and had been subsequently paid by them. Under the construction we give this warranty, this evidence was entirely immaterial, and worked no injury to defendants, even though it could be maintained'that such evidence was inadmissible. The decision of the case did not turn upon a question of fact, but upon the construction of the written warranty, which was a question of law. Upon the issue made by the pleadings in the case and the evidence in support, the trial court was clearly right in directing a verdict for the plaintiff. The judgment is affirmed.