Oltman v. . Williams

BeowN, J. The defendants set up two defenses: first, that the notes were procured by fraud; second, that there was a breach of an express warranty, for which they claim damages. (1) We agree with his Honor that there was not sufficient evidence of fraud to. justify the submission of that issue to the jury. It is well settled that where evidence raises no more than a mere conjecture of fraud or negligence, it is error to submit the issue to the jury. Maguire v. R. R., 154 N. C., 385, and cases cited. At the time of the sale of the horse the only representations that were made were merely commendatory, and relative principally to the foal-getting qualities of the horse. Such representations could not by any possibility have been made with a knowledge of their falsity, for of all the unfathomable processes of nature, the procreative powers of all animals seem to be the most delicate and mysterious as well as uncertain. In respect to such a matter it was impossible to prophesy with any degree of certainty. These representations could not, therefore, have been made with any knowledge of their falsity. Besides, it is perfectly manifest that the defendants did not rely upon them, apd they were considered no part of the warranty and were not received as such, for the defendants required a written warranty, the *314 . breach of which is the subject of their counterclaim. Cash Register Co. v. Townsend, 137 N. C., 652; Whitmire v. Heath, 155 N. C., 307; Unitype Co. v. Ashcraft, 155 N. C., 63. (2) The paper-writing is entitled “Guaranty,” and contains the following clause: “The said party of the first part hereby guarantees said imported German coach stallion, named Ellmer, with proper care and handling, and bred to healthy producing mares, to be at least a 60 per cent foal-getter. “If said horse does not prove to be as represented, the said party of the first part hereby covenants and agrees to replace said horse Ellmer with another German coach stallion equally as good or refund the money to said second party, provided said second party shall return said stallion to said first party in as good health and condition on or before 1 March, 1909, as when said stallion was delivered to said second party.” It is well settled that a party relying upon and setting up a written warranty of quality in the sale of personal property is bound by the terms of that warranty and must comply with them in order to be entitled to redress in an action to recover the purchase price. Bank v. Walser, 162 N. C., 54; Main v. Griffin, 141 N. C., 43; Robinson v. Huffstetler, 165 N. C., 459. In the last case it is said: “It seems, therefore, to be settled that when there is an express warranty in the sale or exchange of personal property, and it is a part-of the contract that the property is to be returned within a specified time, if not as warranted to be, that the complaining party can have no redress by reason of the warranty in the absence of fraud without offering to return the property within the time named.” The contract of warranty in Piano Co. v. Kennedy, 152 N. C., 196, is very similar to the warranty in this case. In that case it is said that “A party relying upon and setting up a written warranty of the quality in the sale of personal property and a counterclaim for damages for its breach, in an action by the seller for the purchase money, is bound by the terms of the warranty, and must comply with them in order to recover,” citing 30 A. and E. Enc. Law, p. 199. See, also, Main v. Field, 144 N. C., 307; Mfg. Co. v. Lumber Co., 159 N. C., 510; Walters v. Ackers, 101 S. W., 1179 (Kentucky); Wilson v. Ward, 159 Ind., 21; Wisdom v. Nicholls, 97 S. W., 18 (Kentucky). As we construe this contract, it was obligatory and not discretionary with the defendants to return the horse to the plaintiffs on or before 1 March, 1909, in order that the plaintiffs may fulfill their guaranty by replacing the horse Ellmer with another German coach stallion equally as good, or refund the money to the defendants. This construction brings the case clearly within the principle laid down in all the • authorities we have cited. *315 It is true, as contended by the defendants,* that the record does not show that his Honor set aside the verdict upon the fifth issue. It would have been better practice for him to have done so; but the judgment that was rendered is tantamount to setting aside the verdict on that issue. His Honor erred in submitting that issue to the jury, as all the evidence proved, and in fact it was not contested, that the defendants did not comply with the terms of the warranty on their part, as was found by the jury. The judgment of the Superior Court is Aifirmed.