165 Ind. 584 | Ind. | 1905
The material facts involved in this action, as disclosed by the special findings, are as follows: On < June 18, 1896, Crouch & Son were engaged at LaFayette, Indiana, in the business of importing and selling stallions for breeding purposes. Appellees, residing in and about Noblesville, formed a partnership, under the name of the Noblesville German Coach Horse Company, for the purpose of buying and breeding a stallion. Crouch & Son, learning of their purpose, shipped to Noblesville the imported coach horse Ferdinand, and there kept the horse at a livery barn for one week, when they sold him to the appellees. The sale was consummated on June 18, 1896, at the price of $2,000, payable in instalments, which were evidenced by three
“P. S. If said horse should fail to be a satisfactory breeder to said company, and we could not agree upon said horse, we agree to let them pick a man, and, if they could not agree, let them select a third man, and let them select said horse for said company. J. Crouch & Son.”
Appellees took immediate possession of the horse, kept him in the same barn where he had been placed by Crouch & Son, and continued him in the care of the same veterinary who had been employed by Crouch & Son to attend and treat him after his arrival at Noblesville, and before his delivery to appellees. During the season of 1896 the horse was not a satisfactory breeder to appellees, and they so notified Crouch & Son before April 1, 1897. Thereupon Crouch & Son wrote appellees, proposing to extend the guaranty another year, as follows: “If you think he [said horse meaning] has not been as you like him, and would like to try him this season, we will extend our guaranty another year, or, if you think' he won’t we will exchange with you. Hope this will be satisfactory. We remain yours, J. Crouch & Son.”
The horse was imported from Germany by Crouch & Son a short time before his sale to appellees, and at some time before the sale had contracted a disease known as gangrenous dermatitis, which is very rare among native-bred horses, but not uncommon among horses bred in Germany. The disease manifested itself in sores, mostly on the legs and about the root of the tail. At the time of the purchase there was on the horse some small sores, but they were not recognized as indicating any disease. In other respects the horse was then sound and in good condition, except that he was a little thick-winded. Before the purchase Crouch & Son had the sores on the horse treated by a competent veterinary surgeon, and after the purchase appellees had the same surgeon continue his treatment as long as they kept <the horse in their possession. The sores increased in number and size as the hot weather of 1896 advanced. In the fall and winter of 1896 and 1897 they healed, and showed very little in the early spring of 1897, but as warm weather
The horse, while in the possession of appellees, received proper care and feeding for an American-bred stallion, but his food was not proper for a German-bred horse, and Crouch & Son, though informed of the condition of the horse, and requested to come and see him, had not at any time before the horse was returned to them at LaRayette in November, 1897, informed appellees that a German-bred horse ’ required any different care and feeding from one American bred. In November, -1897, when the horse was lodged in Crouch & Son’s barn in LaRayette, the diseases, gangrenous dermatitis and thick wind, which at the time of the purchase were in their incipiency, had fully developed, affecting his general condition, causing him to be poor in flesh and unsightly, and he had also become more thick-winded, and had the heaves. In these respects, only, the horse was not in as sound and healthy a condition as when delivered to appellees, and was and had been worthless as a breeder from the time he was delivered to appellees.
■ About two months after their execution, the notes were for value assigned by indorsement in writing to' appellant, who is still the owner, and all are now in the hands of an attorney for collection, and, unless canceled, suit will- be brought thereon by appellant, who claims the full amount thereof. Appellees had no notice or knowledge of the sale and transfer of said notes to appellant, or other person, at the time of the extension of the guaranty contract, nor did they receive any such notice or knowledge until one week before they returned the horse to Crouch & Son at LaRayette.
The complaint, in a single paragraph, is in the ordinary form of action on an assigned promissory note. Crouch & Son, the assignors, are not made parties. There are four answers and four paragraphs of cross-complaint, the sev
The real battle-ground is furnished by the second and third conclusions of law. Invoking the familiar doctrine that he who asserts the benefits of a contract must show compliance on his part with its terms, appellant earnestly contends that, under the facts disclosed by the special findings, appellees fail to bring themselves within the terms of the contract in more than one particular.
It is further claimed by appellant that appellees defaulted in the condition that, if the horse proved unsatisfactory, they would return him to .the sellers at LaEayette “in as sound and healthy a condition as he now is.” Appellees concede that when returned the horse was diseased, thin in flesh, unsightly, and had the heaves, or thick or broken wind, but claim exoneration from liability or fault on the ground that the condition of the horse was solely brought about by the natural progress and development of diseases with which he was stricken at the time of the purchase. The fact is, as found by the court, that when the horse was returned to LaEayette the diseases, gangrenous dermatitis and thick wind, which at the time of the purchase were in their incipiency, had progressed and fully developed, affecting the horse’s general condition, causing him to he poor in flesh, and unsightly, and he had become more thick-winded, and had the heaves, and that in these respects, only, the horse was not in as sound and healthy a condition as when delivered to appellees.
The question, then, comes to this: Did the undertaking of appellees to return the horse in as sound and healthy a condition as he was then in, if he proved unsatisfactory, embrace the increased unsoundness and ill health that should result from the natural progress and development of dis
So it appears that the right to defend for possible failure of consideration was reserved by appellees in the making of the contract, and is, therefore, a vested right rooted in the foundations of the transaction. It embodies the principle of an indemnity mortgage. There might be no occasion to exercise the right, but it would subsist as a protection during the contract period for a testing of the horse. Suppose appellees had received notice of the assignment on the day it was made, to wit, in August, 1896, months before it was possible, in the nature of things, to determine whether the horse was within the terms of the
The notes in suit belong to this class of instruments. As to them there can be no such thing as a bona fide or good-faith purchaser, vesting in some assignees a better title than the payee and assignor possessed, as recognized in instruments negotiable by the law merchant. Though promises to pay money, these notes are transferable in the same manner as written promises to deliver particular articles, or to perform particular acts, and appellant, as assignee, took the property in them charged with all the equities, conditions and burdens that adhered to them, precisely as they were held by Crouch & Son. Smith v. Rogers (1860), 14 Ind. 224; Wetter v. Kiley (1880), 95 Pa. St. 461, 40 Am. Rep. 670; Cohen v. Prater (1876), 56 Ga. 203; Benton v. Klein (1867), 42 Mo. 97; Howell v. Medler (1879), 41 Mich. 641, 2 N. W. 911; Second Nat. Bank v. Wheeler (1889), 75 Mich. 546, 42 N. W. 963; Herod v. Snyder (1874), 48 Ind. 480; Henry v. Gilliland (1885), 103 Ind. 177; Holman v. Creagmiles (1860), 14 Ind. 177.
It follows that the court committed no error in its conclusions of law. Judgment affirmed. •