Irby v. Stubblefield

ROBERTSON, P. J. Plaintiff and defendant traded horses. The plaintiff undertook to rescind and returned to defendant the horse for which he had traded and demanded the return of his horse. The defendant refused to comply with this demand and plaintiff brought his action before a justice of the peace in replevin for the horse he originally owned. After a trial in the justice of the peace court, an appeal was taken to the circuit court, where, on a trial anew, the plaintiff obtained a verdict and judgment, from which the defendant has appealed. The testimony discloses that this was plaintiff’s first experience in the horse trading business. He was about twenty-one years of age at the time of the transaction. The defendant was engaged in the mercantile business and farming at Birdeye in Greene county. Plaintiff testifies that shortly before the trade he went into the defendant’s store and the question of a trade was brought up; that plaintiff then asked defendant if his horse had any blemishes on him, to which the defendant replied that he did not know that he had any, except that he had a wire cut on him, and [258] told plaintiff to bring bis horse to the store, which plaintiff did; that plaintiff examined the defendant’s horse, which the defendant stated he guaranteed to be safe and sound ‘ ‘ except that little bump on his knee; ’ ’ that plaintiff then said he had discovered little bumps on his head, to which the defendant replied, “Them two places is all that is wrong with him;” that at the time of plaintiff’s examination the horse had on a collar and collar pad and upon the plaintiff raising these he discovered that “one shoulder looked like it was- kind of shrunk and I asked him what was the matter with the shoulder. He laughed and says, ‘What else are you going to find—there is nothing the matter with the horse but the little bump, on his knee and that one on his head—-I can guarantee him to be all right every way;’ ” that they hitched both animals to a wagon and the plaintiff says he noticed that defendant’s horse, before being taken out of his harness,, threw his head to one side, and that defendant thereafter further repeated that he would guarantee the horse against everything except the little bump on his head and the little bump on his knee, and that he would guarantee him to be all right; that the plaintiff then saddled the horse and started off, stating to the defendant that if defendant’s horse was not what it was recommended to be he would bring it back and if the horse he had traded to the defendant was not what he (plaintiff) said it was he would take it back, and that the defendant said to bring back his. horse if plaintiff found anything wrong with him except “that little bump on his knee and that little bump on his head;” that when he started home he noticed that the horse-limped and would throw his head to one side, and that he took him home but brought him back to defendant the next morning and demanded the return of his horse. The defendant himself testified that he told the plaintiff that he would guarantee the horse sound out [259] side of everything the plaintiff could see and also stated, “You can see all that is wrong with the horse, outside of that I will guarantee him sound.” There was also testimony of a witness tending to prove that the defendant knew there was something wrong with the horse’s shoulder that could not be seen. A witness testified that he was formerly the owner of the horse and that when the horse was about five months old he had this shoulder broken and that “it kind of made him shorter-step with that foot than he did with the other.” The case was tried in the circuit court to a jury and the instructions given were free from error. The testimony clearly justifies the conclusion that the plaintiff was, by reason of the discovery of the sunken place in the horse’s shoulder, led to believe that there was some defect as a result thereof, which he was not able to fully discern and, therefore, intended to exact of the defendant a specific warranty as to that particular point and that the defendant so understood the plaintiff and, for the purpose of inducing the trade, made the assertions the plaintiff testifies he made and which the jury, under the instructions given to them, must have found to be true. This, we think, is not a case in which the defendant merely expressed an opinion leading the plaintiff to believe that he must examine and judge for himself, as was the case in Anthony v. Potts, 63 Mo. App. 517; nor an instance in which there was. an obvious defect, the result of which might be determined upon a mere inspection as in Doyle v. Parish, 110 Mo. App. 470, 85 S. W. 646. Neither does, it come within the rule laid down in Moore v. Koger, 113 Mo. App. 423, 87 S. W. 602, where it is held that when the buyer has an opportunity to inspect, an implied warranty cannot he invoked. The case of Grojean v. Darby, 135 Mo. App. 586, 116 S. W. 1062, relied upon by the defendant, is [260] not applicable to this case for the reason that the character of the action and the facts upon which the case was decided are entirely different from those in this case. It is said in Samuels v. Guin’s Est., 49 Mo. App. 8, 10, that, “The general rule doubtless is that the general warranty of soundness does not cover patent defects., nor defects known to the buyer. It is, however, a matter of contract; and, as in construing all agreements, so with this undertaking, the object is to discover the real intention of the parties.” It is further said, however, that “The rule is clearly well settled that the vendor may in express terms warrant against an obvious defect. If the undertaking is clear and unequivocal, we know of no rule of law that will permit the warrantor to escape the obligation of his contract.” In the case at bar, we hold that the defendant must have understood that the plaintiff was exacting of him a special warranty as to any defect in the horse’s shoulder caused by the injury that had left the depression and the warranty by defendant of the soundness of the horse, except the bump on the head and the one on the knee, was made to and did induce the plaintiff to make the trade. Under the facts we hold that the court properly instructed the jury and that the judgment is for the right party and must be upheld. The judgment is affirmed. Sturgis, J., concurs and files a separate opinion. Farrington, J., concurs in result and files a separate opinion.