64 Minn. 300 | Minn. | 1896
On May 12, 1891, Webber & Matthews, payees in the note sued upon, sold to the defendants a stallion for the sum of .$1,800, and, in payment therefor, took from the defendants three nonnegotiable notes, of $600 each, drawing interest at the rate of <0 per cent, per annum, payable, respectively, as follows: December 1, 1892; December 1, 1893; and December 1, 1894. Before the maturity of the note first due, and herein sued upon, the same was, for value, sold and transferred to the plaintiff, who. brings ■•this action. The defendants made a payment of $133.33 upon this note before its transfer to plaintiff. Upon nonpayment of the note, the plaintiff brought this action upon it against these defendants, and they answered, setting up a warranty, which was in the .following words:
“Fergus Falls, Minn., May 12th, 1891.
'We hereby guaranty the imported English shire stallion Stuntney Matchless to be a breeder, provided he is properly fed, handled, .and cared for. [Signed] E. J. Webber.
“J. Y. Matthews.”
The defendants further allege a breach of the warranty, in this: that the stallion was worthless as a breeder at the time of the .sale and execution of the warranty, and demanded that the dam.ages thereby sustained should be set off against any amount which .might be found due upon the note sued upon. The jury found a verdict in favor of the defendants.
Upon the trial of the action, a controversy arose as to the meaning of the word “breeder,” as used in the warranty, it appearing that 36 mares were served by this stallion during the season of 1891, and that only 12 of them had colts. The defendants called .several witness, who testified that they were familiar with the management of stallions; that, among horsemen, stockmen, and farm-ers, the word “breeder,” when applied to a stallion, was one understood by them .to be capable of producing 60 to 65 per cent, foals from the number of mares served. They also testified that they •understood this word in the same sense. The admission of this ■.testimony is alleged to be. error.
Upon the question of the value of the stallion we are not so well satisfied with the evidence. It is meager and unsatisfactory. There are some fifteen defendants, and only one testified upon this point. In their answer, they admit its value to be $300 and that they made a tender of payment of $120 upon this note, which they allege that they have been willing at all times since December 19, 1.892, to pay, and that when they verified their answer, August 31, 1893, they were still willing to pay this amount. As they had already paid $133.33, it will be seen that, considerably more than two years after the purchase of the stallion, they were still willing to allow a payment in all of $553.33 on this $600 note. And this
It is true that, at the close of the plaintiff’s testimony, the defendants’ counsel asked leave of the court to amend the answer, and allege that the stallion was worthless as a breeder, which amendment was allowed by the court, although it does not appear whether this amended answer was again verified by the defendants. If we presume that they did so, still it is a notable fact that only one of them testified as a witness to the value of the stallion. Nevertheless, it appears that the plaintiff did not even cross-examine this witness upon the question of value, nor did he introduce any testimony in his own behalf upon the subject. The testimony of the defendants’ witness who testified in regard to value is susceptible of different meaning; and, while it is therefore quite unsatisfactory, the jury doubtless understood it in the light most favorable to the defendants; and we conclude not to disturb the verdict, especially as the two other notes are still outstanding, over which, if litigation shall arise, more satisfactory evidence may, perhaps, be presented by one party or the other.
The order denying the motion for a new trial is affirmed.