Matteson v. Hawkins, 45 Vt. 336

45 Vt. 336 | Vt. | 1873

The opinion of the court was delivered by

Redfield, J.

This action is assumpsit to recover the price of a yoke of oxen. The defendants told the plaintiff that they wished “ to purchase a yoke of oxen not under five nor over seven years of age; what work they wished them to perform; where they were to work ; and that they must have good feet to hold shoes.” Plaintiff replied that “ his oxen were only seven that spring; that they could do as much work as any other yoke of oxen, and that the foot with the broken claw was all right, and only required a peculiar shaped shoe.” On these representations, defendants purchased said oxen, took the possession, and agreed to pay therefor $180 on a day named.

The • report of the referee states that the broken claw was spongy, and would not hold a shoe ; that the oxen “ were incapable of performing the work for which they were purchased ” ; that they were over seven years old, at least eight, and that known to the plaintiff at the time of the sale. On the seventh day after sale, they were returned to the plaintiff by the defendants, with notice that they were not as represented. They were left in plaintiff’s possession, but he refused to receive them One of the oxen at that time “ was lame, and appeared as if foundered, since that, diseased, and of little value.”

The representation of the plaintiff, and relied upon by the purchasers, as to the condition and quality of the oxen, was doubtless a warranty, and the plaintiff liable in damages for the breach. But it has been held in this state that the breach of an express warranty docs not entitle the purchaser to rescind the contract of sale. West v. Cutting, 19 Vt. 536; Hoadley v. House, 32 Vt. 180. The defendants are not content with these adjudications, and insist that the weight of authority is the other way ; but we think otherwise. In Massachusetts and Maryland, their courts have held “ that an express, or implied warranty may be treated as a condition subsequent, by the purchaser, and the sale avoided for the breach, if he sees fit to enforce the forfeiture.” Bryant v. Isburgh, 13 Gray, 607; Perley v. Balch, 23 Pick. 283; Dorr v. Fisher, 1 Cush. 274; Hyatt v. Boyle, 5 Gill & Johns. 121. But these are exceptions to the general current of authorities, and we see no reason to question the statement of Ch. J. Redfield, in West v. Cutting, supra, that a broken warranty “ will only enable the vendee to recover damages for the breach, but will not entitle him to rescind, and recover back the consideration. This is well settled, both in this country and in England.” If this were not so; there is good ground for holding that defendants kept and used the oxen an unreasonable time after testing their quality, and learning that they were not what they were represented to be. The right of rescission must be exercised at the earliest practicable moment after discovery of the defect. The defendants were aware that the feet of the oxen would not hold shoes, as early as the second day after the purchase ; they kept and used them until the seventh. But the referee 'has reported that the plaintiff knowingly misrepresented the age of the oxen. It was an express stipulation of the contract, that the oxen were not to be over seven years of ago. The fact that defendants made that express provision, is evidence that, to them, it was material, and that they would not have made the purchase if the truth had, in this respect, been told them. There is no doubt that a purchaser may rescind a contract for fraud. And, "this representation being in a matter material to the purchasers, the defendants have the right to rescind the contract, if that right was timely exercised.

The defendants were informed by Ellis, their blacksmith, on the second day, that, in his judgment, the oxen were nine years old. He judged merely from their appearance. They continued to use them carefully after that for five days, and then returned them to the plaintiff, with notice that they were not what he represented. The suggestion of Ellis was a mere opinion, and not necessarily convincing evidence, but such as should put the defendants on inquiry. We do not think that the length of time the defendants kept the oxen after the suggestion of Ellis, under the circumstances, unreasonable, or that it should operate to bar the defendants’ right of rescission.

The judgment of the county court is therefore affirmed.