114 Kan. 582 | Kan. | 1923
This was an action on a promissory note for $1,000 executed by the defendant, and to foreclose a chattel mortgage given to secure the payment of the note, upon a jack which Wilson had sold to Doolittle. The defendant prevailed and plaintiff appeals.
The defendant admitted the execution of the note and the mortgage, but he alleged that the plaintiff warranted that the jack was a good foal-getter and would produce sixty-five per cent of colts from the mares bred, that his only value was as a breeding animal and that he was almost entirely barren. He alleged further that he repudiated the sale in. the fall of 1920, and notified the plaintiff of the breach of warranty but that plaintiff refused to accept a return of the jack and defendant was compelled to keep and feed him. He prayed judgment for the cancellation of the note and mortgage and that he be allowed damages in the sum of $500 for the expenses of keeping the jack and for the loss otherwise sustained.
The plaintiff denied that there was a warranty, denied that the defendant had tendered back the jack and alleged that he had in fact demanded the possession of the jack from the defendant, which was refused. The jury in answer to special questions among other things found that the plaintiff made a warranty at the time of sale, as alleged by defendant, that there was a failure of the warranty and that the defendant had within a reasonable time offered to return the jack in question to the plaintiff.
One ground of error is assigned on the refusal of the court to sustain the demurrer to defendant’s evidence. The burden of proof of the warranty was of course upon the defendant, but it appears that sufficient evidence was produced to show that the alleged warranty was part of the contract. There is a contention that defendant was not entitled to avail himself of the warranty because he kept and used the jack after the discovery of his imperfections and that defendant’s course of action was inconsistent with a rescission of the contract. The defendant did observe in September following the sale that a number of mares that had been bred were returned again and he made complaint of that to the plaintiff. From the evidence it appears that he did not fully determine that it was the fault of the jack nor ascertain that he was actually sterile until the follow
A contention is made that certain findings of the jury are without support in the evidence, but it is without merit.
Error is assigned on the failure of the court to give the jury a requested instruction that an offer to sell the jack is inconsistent with the repudiation of the contract and therefore a verdict should be given for plaintiff. In the condition of the record this question is not open to review. The instructions given by the court have not been brought into the record and if it be assumed that the one requested was an application and correct statement of the law, it cannot be said that the requested rule was not stated in the charge given. What the instructions given were and to what extent this subject was treated by the court is not shown and besides there is. no statement in the abstract that the court omitted to charge the
Judgment affirmed.