62 Wash. 508 | Wash. | 1911
Lead Opinion
This action was brought by the plaintiff to compel specific performance of a contract of sale of real estate situate in Franklin county. A decree was entered in the court below in accordance with the prayer of the complaint. Subsequently the court modified the judgment so that neither party was allowed to recover costs from the other. The defendants have appealed from the decree of specific performance, and the plaintiff has appealed from the order refusing to allow him costs.
“Mesa, Wash., May 6, 1908.
“Know all men by these presents: That J. W. Kleeb for and in consideration of $1,500 to him in hand paid, the receipt of which is hereby acknowledged, do hereby transfer and turn over to A. J. Mclnturff one stallion named Sampson, and the same is free from all incumbrances.
“J. W. Kleeb, by N. H. Brown.”
Thereupon the stallion was delivered to defendants, and the first cash payment — $250—was made, and the plaintiff went into possession of the land. Thereafter in the months of June, July, and August, the plaintiff delivered lumber to the defendants amounting to $759.76, and subsequently made the $500 payment. In the meantime the defendant Mclnturff
The defendants, for answer to the complaint, alleged, in substance, that, at the time the contract was made, the plaintiff represented that the horse had a pedigree and was registered, and that the registration certificate would be delivered within two weeks from that time; that the horse was a good horse for breeding purposes, and would get with foal seventy-five per cent of the mares served; that the plaintiff had failed to deliver the certificate of registration; that the horse was worthless as a foal getter, and that the defendants had been damaged in the sum of $1,600 thereby, and prayed for a judgment for that amount. The plaintiff denied that such representations were made.
At the trial the principal issue of fact was whether the plaintiff or his agent had represented that the horse was a registered horse. A careful reading of the record convinces us that, at the time of the contract and immediately before it was made, representations were made that the horse was a registered horse, and that the defendants relied upon such representations. It is true the defendant A. J. Mclnturff testified that Mr. Brown told him, in answer to a question as to the ancestry of the horse, “He said the sire of the horse was a thoroughbred Clyde, and the mammy was half Clydesdale and half German Coach.” It is also true that men versed in the pedigree of horses know that a horse of such lineage is not a subject of registration; but it is clearly shown, we think, that defendant Mclnturff was entirely ig
It was argued below, and is argued here, that the bill of sale above set out contained the whole contract in writing, so far as the stallion is concerned, and that this part of the contract may not be varied by oral evidence. Jones on Evidence, p. 571, § 542, and Stevens on Evidence, art. 90, are cited to support this rule. The trial court evidently took this view of the bill of sale, and for that reason refused to find that the defendants had .taken the horse upon the strength of the representation that the horse was a registered horse. It is apparent, in the light of the facts, that the bill of sale does not undertake to state the terms of the contract. It was merely collateral to the contract, and evidently given in pursuance thereof to show that the title of the horse had passed from Kleeb to the defendants. The statement that “the same is free from all incumbrances” was a warranty of that fact, but the mere fact that the bill of sale was reduced to writing and was signed by the plaintiff and accepted by the defendant, did not prevent either party from showing that it was also agreed that other property was to be delivered at the same time or subsequently, or that a saddle or bridle or a pedigree was also to be delivered with the horse.
The defendants did not offer to rescind upon discovering that the horse was not a registered one, but seek to retain the horse and recover damages. We think they may rightfully do this, and that their measure of damages is the difference between $1,500, which they paid for the horse, and the actual value of the horse at the time of the contract. The cause is remanded to the lower court to determine this question, and to enter a decree accordingly. Appellant will recover his costs in this court. The costs of the lower court will be adjudged upon final hearing there.
Dunbar, C. J., Parker; Fullerton, and Gose, JJ., concur.
Rehearing
On Rehearing.
[Decided July 19, 1911.]
A rehearing was granted in this case. Upon a reargument, we are satisfied with the conclusion reached upon the former hearing, and the result then announced will stand as the judgment of the court.