80 Mo. App. 318 | Mo. Ct. App. | 1899
This is an action for damages for alleged breaches of an express warranty in the sale of a jack. The plaintiff lives in Virginia and the defendant in Missouri. The negotiations for the purchase of the jack .were by correspondence. - The warranty relied on is evidenced by the following letter received by plaintiff from defendant:
“Bowling Green, Mo., January 28th, 1897.
“Mr. W. H. Moomaw, Roanoak, Va.
“Dear Sir: — In reply to yours of 26th will say Mr. Buck has one of my best imported jacks selected for you. I guarantee him to be a good performer and breeder. He has style and action like a coach horse, black silky hair, long tapering ears, fine large flat bone. Send on your-note and reference together with your security. Yours truly,
“Luke M. Emerson.”
The purchase price of the jack was $275. Upon the receipt of this letter the plaintiff sent defendant his negotiable note for the price of the animal, payable in July, 1898, which the defendant accepted and within a few days thereafter he discounted to a bank in Virginia. Subsequently, to wit, on the nineteenth of February, the jack was shipped by defendant. The plaintiff alleged and introduced evidence tending to prove that the jack was worthless for breeding purposes and was but of little value (if any), for any other purpose. The defendant answered that he sold the jack under the following conditional warranty, which he mailed to the plaintiff on the day the jack was shipped, and that the plaintiff had failed to return or offer to return the jack.
“contract.
“Bowling Green, Mo., Eeby. 19, ’97.
“This certifies that I have this day sold to Moomaw & Buck, ~W. Va., one imported Spanish jack for $275, to be paid for in one note, due July, 1898.
*321 Conditional warranty. “And I hereby guarantee that with proper treatment and handling said jack will prove a reasonably sure breeder, and in case he should prove unsatisfactory after one season’s trial, I agree that he shall be returned to my stables, and if as sound and in as good' condition as when he leaves here, exchange for some jack of same breed and cash value.
“The above and foregoing shall be construed as a special warranty, and as embracing in its terms the full extent of my liability in case of a breach thereof.
“L. M. Emerson.”
The averments of the answer are supported by the testimony of the defendant. The defendant asked and the court refused instructions predicated -on the alleged conditioned warranty. The plaintiff recovered a judgment for $300, and the defendant has appealed.
It is insisted that tbe failure of tbe jack to perform was tbe-result of bad management on tbe part of tbe plaintiff. There was evidence tending to prove and to disprove this. Tbe question was submitted to tbe jury under proper instructions. Tbe finding was against tbe defendant and be is concluded by it. Tbe judgment of tbe circuit court will be affirmed.