In re Ward's Estate

Mitchell, J. The plaintiff contends that his recovery in the court below can be sustained on the ground that this was an action for damages for breach of warranty. It is undoubtedly true that where there is a warranty a right of action for its breach may exist, al [380] though the vendor had expressly agreed to take back the property-in case it did not correspond with the warranty, the right of the-buyer to return being merely a cumulative remedy. But the trouble-with plaintiff’s position is that he has not alleged any warranty. The-allegations of the complaint are me. ely that he bought the stallion, “upon the express condition that, if said stallion did not prove a reasonable foal getter upon at least two seasons’ trial, that he was-to have the privilege of returning said stallion, and to receive in lieu thereof another stallion, of equal value, upon the same conditions.”' The fact that plaintiff subsequently, in his pleading, calls this a “warranty,” does not make it so. The complaint then proceeds to allege-that the stallion did not, on such trial, prove to be a good foal getter; that plaintiff offered to return it; that defendants refused and still refuse to accept it, although plaintiff is ready and willing to do so. Aside from the statement of certain facts tending to excuse a delay in offering to return, this is all, of substance, that there is in ¡the-complaint. This was a sale on a condition subsequent, to wit, that, if the-animal did not prove a good foal getter, plaintiff might, at his election, return it, and receive another stallion in place of it. Being a sale on condition subsequent, the property vested presently in the vendee, defeasible only on the performance of the condition. If the plaintiff in the mean time disabled himself from performing the condition, then the sale became absolute. Rary v. Thompson, 12 Cush. 281. It appears that, a few months before plaintiff tendered a return, he had executed a chattel mortgage on the horse to a third person, to-secure a debt of $600, payable in one and two years. This mortgage, presumably, remains a subsisting and valid lien on the property. This act disabled the plaintiff from performing the condition,., for, clearly, the defendants were not required to accept a return of." the horse with this incumbrance upon it For this reason, if no other, the plaintiff could not recover. Order reversed. Buck, J., absent, sick, took no part. (Opinion published 59 N. W. 311.)