Terry v. Wenderoth

Opinion by Me. Justice Heydeiok, The plaintiff avers in his statement that he purchased a horse from the defendants, paying therefor the sum of five hundred and twenty-five dollars ; that he immediately after-wards exhibited to defendants a veterinary surgeon’s certificate that the horse was unsound; that in consequence of such unsoundness he demanded a rescission of the contract and return of the price paid for him, which was refused by the defendants ; that thereupon he ordered the horse to be sold at auction for account of whom it might concern, of which he gave notice to the defendants; that, before such sale could be made, the defendants proposed to him that he should withdraw the horse from sale, and “ that Dr. Rush Shippen Huidekoper, an eminent veterinarian, should take the horse into his charge at his private stable or hospital, and thoroughly test him,” and “ that if said tests showed the horse not a ‘ roarer ’ he should be retained by the plaintiff as his own, and that defendants would agree to pay one half of the expense of placing said horse at the said hospital, and the tests thereafter to follow by said Huidekoper; ” that Dr. Huidekoper upon making the tests pronounced the horse a “ roarer,” of which notice was given to the defendants, and that four days thereafter the defendants sent for the horse and took him away from the hospital and still have him; none of which averments were denied by the affidavit of defence. The conduct of the defendants in sending for and retaining the horse under the circumstances detailed, is not consistent with any other theory than that of a compliance, pro tanto, with the plaintiff’s demand for a rescission of the contract, and when, in compliance with that demand, the defendants took the horse back, they became liable to refund the price paid for him, and the further sums agreed to be paid on account of the expense of the tests made by Dr. Huidekoper. It is immaterial that other averments not of the essence of the undenied cause of action were traversed with great emphasis ; such averments may be treated as surplusage. But the blending of a count upon a warranty with the statement of the real cause of action is not to be commended. The plaintiff was not entitled to recover for the keep of the horse, or for the examination made by Dr. Gadsden. The several sums [523] charged on these accounts, and one half of Dr. Huidekoper’s bill must be stricken out, leaving the judgment to stand for five hundred and forty-five dollars. As so modified the judgment is affirmed.