Abilene Natlional Bank v. Nodine

Opinion by Mr. Justice Bean. The first assignment of error in the notice of appeal is the action of the trial court in overruling plaintiff’s demurrer to the evidence supporting the new matter in the answer. The argument is that the answer is insufficient to constitute a defense because it does not aver that defendants relied upon the alleged warranty in making the purchase of the horse. To constitute an express warranty, such as is attempted to be alleged in the answer, there must be, as part of the contract of sale, either an express undertaking to that effect, or some affirmation or representation as to the quality or condition of the thing sold, made at the time of the sale, for the purpose of inducing the buyer to make the contract, and in either case the buyer must have relied upon the agreement or representation in making the purchase. It is elementary law that unless the purchaser of personal property relied and acted upon the statement or representation of the seller as to the quality or condition of the thing sold, and was thereby induced to make the purchase, he cannot maintain an action for a breach of warranty; and hence it is sometimes held that a general warranty does not apply to [55] obvious defects known to the purchaser, because, in the very nature of things, one cannot rely upon the truth of that which he knows to be untrue. It is therefore essential in an action for a breach of warranty for the purchasser to allege that he relied upon the warranty and was thereby deceived: 1 Estee’s Pleading, §§ 1592-1593; Holman v. Dord, 12 Barb. 336; Torkleson v. Jorgenson, 28 Minn. 383, 10 N. W. 416; Zimmerman v. Morrow, 28 Minn. 367, 10 N. W. 139; Watson v. Roode, 30 Neb. 264, 46 N. W. 491; Reed v. Hastings, 61 Ill. 266. The answer herein failing to comply with this rule does not state facts sufficient to constitute a defense, and for this reason is fatally defective. The other assignments of error arise out of the ruling of the court in the admission and exclusion of testimony and instructions given and refused, but the bill of exceptions is so imperfect that we consider it best not to attempt to pass upon any of the questions thus suggested. The judgment of the court below will therefore be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.