72 Pa. Super. 534 | Pa. Super. Ct. | 1919
Opinion by
The plaintiff, a farmer, sold his personal property, including certain live stock, at public auction to the highest bidder. The defendant, a liveryman of eighteen years’ experience, attended the sale and was the successful bidder on a five-year-old mare. Before bidding for the mare he had examined her or “looked her over.” The defendant himself made no inquiry of the plaintiff as to the condition of the mare, but testified that the auctioneer just before offering her for sale, said to the plaintiff, “What statement have you to make on this mare?” And the plaintiff said, “This mare is sound and all right and a good worker double, but we never hitched her single.” The mare was knocked down to the defendant at $100. After the sale he had some conversation with the plaintiff and told him that he did not want the mare as she was too small for him, and the plaintiff finally agreed to accept $95, for which, together with some other articles bought at the sale, the defendant gave his check. The defendant subsequently refused to pay the check, and the plaintiff brought this action thereon. The defendant set up as a defense to the action that the mare balked and had a jack on her left hind leg.
In our opinion, this case is governed by the decision of this court in Wilkinson v. Stettler, 46 Pa. Superior Ct. 407. In that case the vendor of a horse said “he was solid and sound and would work any place.” This was held under the circumstances of the case to be no more than a representation of the qualities of the horse and not to import an express warranty of the truth of the representation. The evidence in this case is equally barren of circumstances from which the jury could legitimately infer that the vendor intended the statement made by
In the present case, there was merely a naked affirmation or representation, not in itself importing a warranty, and unaccompanied by circumstances from which the jury could legitimately infer an intention on the part of the vendor to be bound for the truth of his statement, and therefore the learned trial-judge did not err in refusing to submit the case to the jury.
The assignments of error are overruled and the judgment is affirmed.