Hostetler v. Bartholomew

The opinion of the court was delivered by Dawson, J.: This is an appeal from a judgment for the return of the price paid for a stallion purchased for breeding purposes, for which the animal was incapacitated. An item for freight charges and cost of keeping the animal was also claimed and allowed. Error is assigned on the admission of evidence and the instructions to the jury are criticised. It is urged that evidence of the conversations between plaintiff and one Dedrick when defendant was not present should have been excluded. The evidence showed Dedrick’s agency, that he brought the principals together and bore an effective hand in fixing the price. The defendant paid Dedrick a commission for [218] his services. The evidence also showed that defendant and his agent Dedrick knew the purpose for which the horse was bought. It was also proved that Dedrick warranted the horse to be “as sound as a dollar and a sure foal getter.” But it is contended that plaintiff was an experienced horseman and carefully examined the horse and therefore did not rely on Dedrick’s warranty. It would seem to be a sufficient answer to this to note that the incapacity of the horse could not be discovered by plaintiff’s fifteen minutes’ examination, and could probably not be discovered at all until the horse was put to trial for breeding purposes. It is clear that defendant ratified the warranty of his agent. (Wagon Co. v. Wilson, 79 Kan. 633, syl. ¶ 3, 101 Pac. 4; Thomas v. Warrenburg, 92 Kan. 576, syl. ¶ 2, 141 Pac. 255.) The freight paid on the horse from Wichita to Attica and the feeding and care of the horse were proper items of recovery. In King v. Machine Co., 81 Kan. 809, 106 Pac. 1071, it was said: “It was held in Michigan in an action arising upon the sale of a horse as sound, which had been returned because of unsoundness, that the purchaser might recover not only the money paid for the horse but expenditures in transportation, keeping, and medical attendance, for such time as would be necessary to satisfy a prudent man that the horse was worthless. (Murphy v. McGraw, 74 Mich. 318.)” (p. 814.) We are unable to discover any material error in the instructions. The onus probandi was properly defined, the law relating to the case was correctly stated, and the rights of defendant were duly safeguarded, and the judgment must be affirmed.