Griffin v. McDonald

COX, J. Action by replevin for possession of a horse. Trial by court, judgment for plaintiff and defendant has appealed. Plaintiff and defendant exchanged horses. The horse traded by defendant to plaintiff was a stallion which defendant at the time understood plaintiff wanted to use in connection with a jack which he kept [87] for breeding purposes. After the trade plaintiff discovered that this stallion was diseased and upon making that discovery tendered the stallion back to defendant and demanded the return of the horse he had traded to defendant, which was refused and this suit followed. • There is but one question for us to determine in this case and that is whether o,r not there was evidence sufficient to sustain the judgment of the court upon the theory that defendant had warranted the stallion to be sound. If defendant did so warrant him and plaintiff relied thereon in making the exchange and the horse was, in fact, not sound, then on discovering that fact plaintiff had the right to rescind the contract and the issues were properly found in his favor. [Faust v. Koers, 111 Mo. App. 560, 86 S. W. 278; Childs v. Emerson, 117 Mo. App. 671, 93 S. W. 286; Laumeier v. Dolph, 145 Mo. App. 78, 130 S. W. 360.] Looking to the testimony in this case and considering that most favorable to plaintiff as we are required to do in determining whether or not the judgment of the court is supported by the testimony, we find the following facts: In about a month after the trade, plaintiff discovered that the stallion had some disease of the genital organs, and there was evidence tending to show that this disease was what is known as dourine. That it is an infectious disease and is contracted by intercourse with an infected animal. That the disease may develop in a few days or it may not appear for a few weeks or months after infection. That the stallion had no chance to become infected after the trade was made. On the question of warranty, we find this testimony. Defendant testified that he knew the purpose for which plaintiff wanted the stallion. Plaintiff testified that defendant represented that the stallion was all right and that he relied upon that representation and was induced by it to make the trade. If this evidence was believed by the trial court [88] it was sufficient to support the finding that defendant waranted the stallion to be sound for the purpose for which plaintiff was procuring him. The evidence tended to show that the stallion was infected with the germs of the disease at the time of the trade although it did not develop for á month afterward. Also that plaintiff acted promptly in offering to rescind after discovering that the stallion was diseased. If this were true and defendant represented the stallion as being sound and plaintiff relied upon that representation in making the trade, then the fact, if proven, that defendant had no knowledge of his diseased condition at the time of the trade could make no difference. We think the evidence sufficient in law to support the finding of the trial court and its finding is therefore binding upon us. Judgment affirmed. All concur.