76 N.Y.S. 930 | N.Y. App. Term. | 1902
Lead Opinion
The complaint in this action was for money had and received. After the close of the examination of the plaintiff' as a witness on his own behalf the plaintiff’s attorney moved to change the cause of action to breach of contract of warranty, and the motion was granted. To this cause of action the defendants pleaded “a general denial, and that the contract was between the-plaintiff and one by the name of Shubbert, and that the defendant was simply the auctioneer, and only represented the purchaser and seller.” The trial proceeded, and was concluded upon the pleadings as amended. The controversy between the parties arose out of the purchase of a horse, made by the plaintiff at an auction sale-conducted by the defendant. The plaintiff had frequently attended such sales. He had in his possession at the time of the sale in question a catalogue which contained a “Special Notice.” The no
Upon the present record, the judgment should be affirmed, with costs.
GREENBAUM, J., concurs.
Concurrence Opinion
(concurring). According to the pleadings, as amended at the trial, the action was for the breach of a contract of warranty in the sale of a horse, the warranty being that the animal was “kind and true in all harness.” The terms of the warranty were contained in a notice attached to the catalogue of the horses offered at the sale, and according to this notice the purchaser of a horse thus warranted was entitled to a return of the purchase price if the animal refused to work. It was also provided that “the time allowed to test warranty” should expire at g o’clock in the morning of the Monday ■following the sale, and that all claims should be made “before warranty runs out.” The sale took place on Friday, and. the horse was received at the plaintiff’s place of business late that day, having been ridden from the place of sale by some person employed by the plaintiff for the purpose. On Saturday the animal was found to be so stiff in the legs that it could not be used, and this condition continued until Monday morning, when plaintiff caused it to be returned to the defendants at some time after io o’clock. Assuming that the stiffness of the' horse amounted to a demonstrated refusal to work, within the warranty, the plaintiff’s right of recovery upon the warranty depended upon his observing the conditions, which were made a part of it, and one of these conditions was that the claim should be made before g o’clock on Monday morning. This condition, which provided for a period of trial of more than two days, cannot be deemed an unreasonable one (28 Am. & Eng. Enc. Law, 804, 805), and it appears that a strict compliance therewith was relied upon by the de
Judgment affirmed, with costs.