38 F. 308 | U.S. Circuit Court for the District of Southern California | 1889
This action is founded upon a guaranty contained in a bill of sale executed by defendants to the plaintiff for a Clydesdale stallion called “Scotland’s King,” which reads as follows:
“We hereby guaranty the above-named horse to be a reasonably sure foal-getter, with proper care and handling. In case he should prove barren we agree to replace him with another horse of same breed and price, upon delivery to us of above-named horse, if as sound and in as good condition as when purchased of us. ”
But the first objection made by defendants to the tender goes to the principal point relied upon in defense of the action. It is claimed by defendants that the guaranty was not executed at the time of the sale,, but subsequently, and without consideration; and upon this point the testimony of the plaintiff' and of the defendant Bennett is in direct conflict. Both of these parties made a good appearance upon the witness stand, and were apparently testifying truthfully. Yet the testimony of both cannot be true. In brief, that of the plaintiff on this point is that in the negotiation concerning the horse the agreement with defendants was that they should give the guaranty in question, and that at the time of the closing of the trade plaintiff executed to defendants deeds for the land, and at the same time the elder Bennett (with whom the business was conducted) executed to him (plaintiff) the bill of sale and guaranty.' Bennett positively denies the statement of the plaintiff in these particulars, and testifies that he never agreed to give a guaranty, and did not give a bill of sale or guaranty at the time of the consummation of the sale; that several days after its consummation and after his receipt of the deeds in payment for the horse, plaintiff came to him, and asked him as a favor to give him a bill of sale for the horse, and that to accommodate plaintiff he (Bennett) went to his room, and got a blank bill of sale and signed it, rot noticing that it contained a guaranty, and gave it to the plaintiff; that defendants, whose business is that of importing and
But one other question remains to be determined, and that is the amount of damages'to which plaintiff is entitled. The’counsel for the respective parties are agreed that the true measure of damages is the excess of the value the horse would have had if he had been a reasonably sure foal-getter, over his value in his barren condition, and, in addition, a fair compensation for the loss incurred by the plaintiff in his effort in good faith to use him for the purpose for which he was purchased. I think the evidence shows the cash value of the horse at the time of sale was $2,000, and that in his barren condition, as subsequently ascertained, his value was and is $250. The plaintiff received the horse about the 1st of February and from that time on, and especially during the months of April and May, repeated efforts were by plaintiff’s direction made to test the capacity of the horse, and ample evidence given of his unfitness for breeding purposes. The horse should then have been returned by plaintiff to defendants. For expenses subsequently incurred I do not think plaintiff should be allowed. For the board and wages of the man employed to care for the horse during the months of February, March, April, and May the plaintiff will be allowed at the rate of $55 per month, aggregating $220. It results that plaintiff is entitled to judgment against defendants for the sum of $1,970 and costs. Ordered accordingly.