Crouch & Son v. Leake

Kirby, J., (after stating the facts). Appellants contend that the court erred in not directing a verdict in their favor and are right in so doing. The undisputed testimony shows that the stallion was not “a satisfactory sure breeder” as warranted, but it also shows that appellees gave no notice to appellants of a breach of the warranty nor did they return or offer to return the horse to the seller and receive another of equal value in his place by August 1, 1908, as they were required to do by the terms of the contract or at all. Neither was there any testimony tending to show a waiver by appellants of this condition. The written contract expressed the terms of the warranty and provided the remedy that should accrue from a breach of it which was exclusive of any other mode of compensation and afforded the only relief to which they were entitled. Not having complied with the said condition on their part, nor shown a waiver thereof on the part of appellants, they will be held to have accepted the stallion as in all respects complying with the warranty and bound to the-payment of the balance due on the note for the purchase money. Highsmith v. Hammonds, 99 Ark. 400. See also Walters v. Akers, 101 S. W. (Ky.), 1179; Wisdom v. Nichols & Shepherd Co., 97 S. W. 18. The court erred in not directing a verdict for appellants and its judgment is reversed and judgment will be entered here for them in the sum sued for. It is so ordered.