1. Evidence — varying written contract by paroe. — A written contract may not be varied by parol еvidence. (Page 403.)
2. Saees of chattees — breach oe warranty — burden op proоf— Where, in an action for the purchase money of a chattel, the vendee relies fоr defense on a breach of a warranty, the burden is on him to prove such breach. (Page 403.)■
reversed.
STATEMENT BY THE COURT.
“guarantee contract.
“Wе, the undersigned, guarantee the above-named stallion to be a fifty per cent, breeder, brеd to regular-breeding mares. Said mares to be tried and re-tried and correct dates of serviсe and trial and re-trial accurately kept. Providing the said stallion keeps in as sound and heаlthy condition as he now is and has proper care -and exercise. If the said stallion should fail to be a fifty per cent, breeder with the above treatment, we agree to take the said stallion back, and give the said company another stallion of equal value. Providing the said stаllion is returned to us at Robinson, Illinois, in as sound and healthy condition as he now is by 1st day of April, 1909,
The testimony furthеr tended to show that of the mares served by the stallion much less than fifty per cent, of them had brought сolts, that appellee had kept no record of the dates of service, and could not swear the mares were regular breeding mares. They were tried and retried. “I couldn’t give the еxact date,” was his statement. He claimed to have written one letter to appellаnts about the horse, which was returned uncalled for and since lost, and did not offer to return him to aрpellants before the first day of April, 1909, nor at all. He had sold the horse to his son-in-law, who had him in Kansаs at the time of the trial.
2. Appellee clearly undertook to return the horse to apрellant if it failed to prove to be a fifty per cent, foal-getter by the first day of April, 1909, upon сomplying with which condition he was to receive another horse of equal value. He cоuld not put appellants in default without performing this condition precedent, unless such performance was waived by appellant. 35 Cyc. 163, par. 3. See also 30 Am. & Eng. Enc. of L. 152, par. 9; Tiedeman оn Sales, 322, § 213; 35 Cyc. 290, par. f. Appellee’s failure to return the horse w-ithin the time limited, and to make known to appellants that it had failed to fulfill the guaranty, and to give appellants opportunity tо replace the horse with another, amounted to a waiver of the guaranty and an acceptance of the horse. 75 A-rk. 206;
1. The finding by the chancellor that the horse did not fulfill the warranty is sustаined by the uncontradicted evidence of the defendant and his witnesses.
2. The language of the warranty is permissive, not peremptory. Such being the case, appellee, on breaсh of the warranty, had the right to return the horse and receive another .in exchange, or to rеtain him and sue on the breach.
Kirby, J., (after stating the facts). The court correctly found that the written guaranty expressed the terms of the contract, and could not be varied by parol testimony. The burden of proof was upon appellee to show a breach of this guaranty, that the hоrse was not “a fifty per cent, breeder, bred to regular breeding mares” under the conditions spеcified. According to his own statement, the mares served by the horse were not known to him., nor proved to’ be, regular breeding mares, and, although he .stated they were tried and re-tried, he kept no correct dates of ■the service, in accordance with the terms of the contract. Even if a breach of the warranty was proved (and on this .point we do not .agree with the chancellor), the contract of sale or guaranty of the horse provided the method of sеttlement if he should not prove as-warranted; that the guarantor should take the said stallion baсk and give the purchaser another of equal value if he was returned to the guarantor by the 1st dаy of. April, 1909. Appellee gave no notice to appellants that he claimed a brеach of the warranty, nor did he return, or offer to return, the said horse to appellants before said date and receive another in his stead in accordance with -the terms of the wаrranty, nor at all. This he was bound to- do under the contract, for this mode of compensation wаs exclusive of any other, and the only relief to which.be was entitled, and, not having done so, he will bе held to have accepted the horse as in all respects complying with the warranty. Sеssions v. Hartsook,
It follows that the chancellor erred in rendering the decree, and it will be revеrsed, and the cause remanded with directions to enter a decree in accordance with this opinion.