184 Iowa 1334 | Iowa | 1918
At the close of the evidence, the defendant moved for a directed verdict, on the ground that it appeared conclusively from the evidence that the two horses in question were severally bought, and not jointly, and that a breach as to one did not authorize a rescission as to both.
The evidence was, in substance, that the purchase in question was made at a public sale held by the defendant. A span of black horses was brought into the ring, harnessed together. A full warranty, both as to soundness and as to working qualities, was announced. They were offered for sale, with a privilege to the bidder to select either one for the price offered, or both for double the price bid. The highest bid was that of the plaintiff, at $227. This bid being accepted, he elected to take both. He settled therefor, according to the terms of the sale, by giving his note for $454. Breach of warranty was discovered as to one of the horses, whereupon the plaintiff rescinded as to both. '
Upon the foregoing evidence, was the defendant entitled to a directed verdict? We think not. Both parties concede that the question of severability of such a contract is one of the intention of the parties. This intention is often, if not usually, a question of fact. The most that the defendant was entitled to in this case was to have the question submitted to the jury as one of fact. We are not prepared to say that he was necessarily entitled to that much. The form of the offer of the horses was such that the bidder was not bound to disclose in advance his particular choice of the horses, if he was bidding on one only, nor was he required to disclose in advance whether he was bidding upon one or upon both. This was left to his declaration, to be made after the bidding had ceased. He had a right to reserve to himself the purpose of buying a matched span of horses. Only one warranty was tendered. It was so worded as to make it applicable to either horse, or both. Its final applicability was left to be determined by the ac