140 N.W. 258 | S.D. | 1913
TKíb case is before the court on appeal by the defendants from a judgment for a breach of warranty of the breeding qualities of a Perdieron stallion, sold plaintiff by defendants. The negotiations leading up to the sale took place at three several meetings of plaintiff and one of the defendants, during the month of April, 1909. The purchase price was paid in cash by plaintiff before taking the horse. Nothing was said about any written contract or bill of sale until the deal had been closed and the purchase price paid. After receiving the purchase price, defendants made out and handed plaintiff a paper entitled “Bill of Sale.” This paper plaintiff folded up and put into his pocket, without reading. He afterwards put it away, and was never able to find it again, and never did read or learn its contents.
It was understood by the defendants at the time of the sale ■that plaintiff wanted the stallion solely for breeding purposes, and that he intended to stand 'him for public service during the season of 1909. Defendant warranted him to be a 50 per cent, foal-getter, and it was upon the strength of that warranty that plaintiff made the purchase. In addition to the warranty, defendant told plaintiff that if the stallion did not fulfill the warranty that he might bring him back to defendant and “get another horse of the same value and breed.”
Plaintiff at once advertised the stallion, and took him on the road for public service. He was properly and carefully handled; he was a fine-looking horse, and was well patronized; but, as soon as sufficient time elapsed, he proved to be absolutely barren and worthless for breeding purposes. During the season he served bettween 70 and 80 mares, but failed to get a single one of them with foal.
Thereafter some talk took place between plaintiff and defendants about another stallion, but defendants 'had no other horse of similar character, and plaintiff brought this action to recover damages upon the breach of defendants’ warranty. Upon the trial there was sufficient evidence, if competent, to* prove the facts ás above stated. The evidence also showed that the stallion, at the time of the sale, was not actually worth to exceed $200, but that if he had been as good as warranted by defendants he would have
Appellants assigned a large number of errors as grounds for a new trial, but in their argument in this. court they contend that they are entitled to a new trial upon the grounds: “ (1) That the evidence of the plaintiff does not sustain the allegations of the complaint; (2) that no cause of action has been established in favor of plaintiff and against defendant; (3) the receipt of incompetent evidence prejudicial to the defendants’ rights.”
We have carefully examined the pleadings and the evidence as it appears in the record, and are satisfied that the evidence is sufficient, if competent, to establish both the allegations of the complaint and a cause of action in favor of the plaintiff and against the defendants. This leaves only the question of the competency of the evidence to be considered.
But appellants’ principal ground for a new trial is that the court, over proper objections, admitted oral evidence to prove the terms of a contract which they claimed was reduced to writing. The negotiations leading up to the purchase consisted of two personal interviews between plaintiff and one of the defendants. Plaintiff first called on the defendants, accompanied by a friend of his, whom he considered a judge of horses, and examined the horse in question. Defendants at that time made known their price and also the warranty they were willing to make. About three or four days later, plaintiff, again accompanied by a friend of his, called on defendants to examine the horse. Defendants repeated their warranty, and plaintiff made them an offer. This offer was, by defendants, taken under consideration, but was accepted over the telephone next day; and on the following day plaintiff called on the defendants, paid them the purchase - price, and took the horse. It was on this occasion that the only writing that took place in the entire transaction was made. This was a bill of sale, made out and signed by defendants; but its contents were not proven.
It will be remembered that this bill of sale was never mentioned until after the entire transaction connected with the sale of
. Defendants.claimed to have kept a copy of this -bill of sale, but it is a very significant fact -that they did ndt offer the copy in evidence, although a. sufficient foundation was laid; neither did they attempt to prove its contents, nor did they deny having given the warranty- substantially as claimed' by the plaintiff.
The judgment of the trial court and the order appealed from are affirmed.