77 N.Y.S. 835 | N.Y. App. Div. | 1902
On the 26th day of January, 1899, the parties hereto entered into a written contract by the terms of which the plaintiff rented to the defendant certain premises, and as a consideration therefor received from the defendant a “sorrel, white-faced, sucking colt.” Upon taking the colt to his home the plaintiff discovered that it had a serious throat affection in consequence of which it was unable to swallow either water or food, but after taking either into its mouth ejected the same through its nose. The evidence tends to show that this affection was the result of an injury (which fact was well known to the defendant at the time he entered into the contract with the plaintiff), and that it finally resulted in the death of the colt on the 20th day of June, 1899.
The action was originally brought in a Justice’s Court where a judgment for ten dollars damages and four dollars costs was recovered by the plaintiff, which judgment was subsequently reversed by the County Court upon appeal. The action appears to have been tried upon the theory that the plaintiff’s cause of action was for fraud and deceit, but, inasmuch as the complaint contains no allegation appropriate to such a cause of action, it was correctly held by the County Court that it could not be maintained upon that theory. Neither can the recovery be upheld upon the theory that there was a warranty and a breach thereof upon the part of the defendant, for the reason that the contract was reduced to writing, and as it contained no language which amounted to a warranty, it must be assumed that none was intended. (Van Ostrand v. Reed, 1 Wend. 424.)
However, the error of the justice in admitting this incompetent evidence was not prejudicial to the defendant, inasmuch as the written contract was subsequently offered and received in evidence and the judgment of the trial court was apparently not founded, upon any of the preliminary negotiations which were not embraced therein.
The plaintiff testified that after he had taken the colt home and discovered the condition of its throat he had an interview with the defendant, in the course of which the following conversation took place:
“I saw Helmer and said, ‘you lied to me about the colt, she is not what yon said. I am feeding her all she can eat and she grows poor.’ He said, ‘ she will be all right when you turn her out to grass.’ He said, ‘ I will give you $50 for her in the fall. If she dies, I will make it all right.’ I kept her, hoping that she would get better when I turned her out in good feed. She had good water. About the last of May when I turned her out. She lived until about June 20th, 1899, and died. She grew poor continually and finally died of starvation.”
This evidence, which was not controverted by the defendant, contains a separate and distinct promise upon the part of the defendant to give the plaintiff fifty dollars for the colt if he would keep her until fall, or to make it all right with him if she died prior to that time, and inasmuch as this promise was founded upon a good consideration and was collateral to and independent of the agreement which had theretofore been reduced to writing, it furnishes the plaintiff with a good cause of action (C hapin v. Dobson, 78 N. Y. 74; Hutzler v. Richter, 13 App. Div. 592); and it is doubtless this cause of action which the plaintiff intended to cover by his complaint.
The complaint was drawn and the case tried for the plaintiff by a, layman, who, it is fair to assume, was not well versed in the rules of pleading or evidence; and as the defendant’s colt was obviously of no value, and as the rental value of the plaintiff’s premises was conceded by the defendant to be at least ten dollars, we think the rule which
Judgment of County Court reversed and judgment of the Justice’s Court affirmed, with costs.
McLennan, Spring, Williams and Hiscook, JJ., concurred.
Judgment of County Court reversed and that of the Justice’s Court affirmed, with costs.
