Loisseau v. Gates, 140 N.W. 258

Loisseau v. Gates

140 N.W. 258 | S.D. | 1913

POUDEY, J.

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 *232been worth $1,400 or $1,500. It was also proved that plaintiff expended, in time and money in advertising and caring -for the horse during said breeding season, about $450. Plaintiff sued for the difference between the actual value of the 'horse at the time of the sale and what he would have been worth if he had been as warranted by defendants, plus the expense incurred by plaintiff in caring for the horse during the said breeding season. The jury awarded plaintiff a verdict for $750.

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.

[1-3] Appellants contend that, because they gave plaintiff the privilege of returning the horse, in case he should, not prove to be as good as warranted, and getting another of similar character, plaintiff was not entitled to recover on the warranty; and that all evidence offered on plaintiff’s theory of the case was incompetent. In other words, that plaintiff could not recover upon ■ the breach of warranty, but must rely wholly upon his privilege to exchange. In this the appellants are clearly wrong. In the first place, the right to make the -exchange was only a privilege, a mere option, which plaintiff might -exercise or not, just as he saw fit; and, in the second place, the testimony of the appellants themselves show that the plaintiff did try to avail himself of this privilege, but that they had no horse of a similar character to give in exchange. But this was wholly immaterial. Plaintiff was under no obligation to exercise this option. It was known to the defendants that plaintiff was buying the -horse solely for '-breeding purposes. .Hie had but little value for any -other -purpose. He was warranted by defendants to come up to a certain agreed standard for this purpose, *233and when he. failed to come up to this standard there was clearly a breach of the warranty, and plaintiff’s measure of damage was the difference between the value of the -horse as- he was at the time of the sale and his value if he had complied with defendants’ warranty, plus the expense necessarily incurred for his care during said breeding season; and the option to return- and exchange him for another horse is no -bar to an action for damages upon the warranty. 30 Am. & Eng. Enc. 195, and eases cited; Love et al. v. Ross et al., 89 Iowa, 400, 56 N. W. 528; First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473-475; Eyers v. Haddem (C. C.) 70 Fed. 648; Hefner v. Haynes, 89 Iowa, 616, 57 N. W. 421; Hallowell v. McLaughlin Bros., 136 Iowa, 279, 111 N. W. 429; Ellwood v. McDill, 105 Iowa, 437, 75 N. W. 340; Park v. Richardson & Boynton Co., 81 Wis. 399, 51 N. W. 572; Fitzpatrick v. D. M. Osborne & Co., 50 Minn. 261, 52 N. W. 861, 862. And it is wholly immaterial whether -the supposed value of the horse was more or less than the price paid for him. McCabe v. Desnoyers, 20 S. D. 581, 108 N. W. 341, 342.

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 *234tlie horse had- been closed, and was a mere gratuity on- defendants! part. Defendants- did not -pretend- that it, was- anything more than a bill- of sale at the. time, and plaintiff attached bo little significance to-'it that he did not read it, and, as above stated, he never knew its -contents. Defendants concede that there is “no presumption of .warranty contained in such document.”

. 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.

[4] In defendants’ answer the terms of the warranty were set forth — whether written or oral is not alleged — but these terms did not differ materially from the 'evidence offered'by plaintiff on that subject.' So that, even if there was a written warranty, it is not shown that the reception of the evidence, to which appellants object, was in -conflict therewith; and, consequently, there was no error in admitting it.

The judgment of the trial court and the order appealed from are affirmed.