Andrews v. Peck
| Decision Date | 16 December 1910 |
| Citation | 78 A. 445,83 Conn. 668 |
| Court | Connecticut Supreme Court |
| Parties | ANDREWS v. PECK. |
Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.
Action by Edgar T. Andrews against John R. Peck. From a judgment for plaintiff, defendant appeals. Affirmed.
The plaintiff brought suit to recover the balance of the purchase price of a horse. The defendant purchaser filed a counterclaim for the breach of an express warranty of the animal. The warranty alleged was one that the horse was sound and true in every spot and place. The only breach set up was that it was then unsound, by reason of being unmanageable while it was being shod. The allegation of this breach was denied by the plaintiff. The court found that the warranty was made as alleged, save that one eye was excepted. No question is made growing out of this latter defect. It was also found that upon the last occasion before the sale, when the horse was shod, it was hurt or terrified during the operation, that from this terror or hurt there originated so great a fear of the tools of a blacksmith, that when it was first shod after the sale it was unruly and fractious, and habitually thereafter exhibited the same trait whenever it was taken into a blacksmith shop, that it was never unruly or fractious under other conditions, that as a consequence of this trait it was necessary to place it in stocks or to throw it in order to shoe it, that while it could be thus shod without danger to itself or the smith, it was more troublesome and expensive to shoe it than it otherwise would have been, and that the facts thus outlined were such as to decrease the market value of the animal. Both parties at the time of sale were ignorant of these facts, and of what occurred when it was last shod during the plaintiff's ownership. No other breach of warranty was claimed than such as arose from the existence of this trait and resulting habit.
Frank M. Canfield, for appellant.
Martin J. Cunningham, for appellee.
PRENTICE, J. (after stating the facts as above). The defendant seeks recovery upon a counterclaim for the breach of warranty of a horse. It is found that the warranty was made. The only breach alleged is one resulting from the fact that the horse was at the time of sale unsound. The unsoundness complained of is expressly alleged to have been unmanageableness while being shod. The issue presented to the court was, therefore whether or not the animal was unsound for reasons substantially as averred. That defendant's counsel recognized this as the issue, and tried the case upon that theory, is apparent, and the court's memorandum of decision is confined to a consideration and determination of it. Its conclusion, which was made the sole basis of decision, was that a warranty of soundness was not broken by the existence of the conditions which were found to have existed.
We have no occasion, therefore, to inquire whether or not the terms in which the warranty was couched, in their true intent and meaning, carried a more comprehensive warranty than that of soundness. It is our duty under the circumstances to accept the issue as framed by the pleadings, and review the court's determination of it.
Baron Park, in Kiddell v. Burnard, 9 Mees. & W. 668, following the tenor of his ruling in the earlier case of Coates v. Stevens, 2 Moody & R. 157, defined the effect of a warranty of soundness in a horse as follows: "The rule as to unsoundness is that if at the time of sale the horse has any disease, which either actually does diminish the natural usefulness of the animal, so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, or if the horse has either from disease or accident undergone any alteration of structure, that either actually does at the time, or in its ordinary progress will, diminish the natural usefulness of the horse, such horse is unsound." This statement, concurred in by his associates, has ever since remained the settled rule in England, and been accepted and followed by the courts of this country and text-writers, as embodying the correct test to be applied under all ordinary conditions. We have looked in vain for authority which gives to the warranty a wider scope. It furnishes the test to be applied to the situation before us.
Applying it, the conclusion is inevitable that the horse in question, when sold, was not unsound by reason of the unfortunate trait which it had acquired. It had no disease, incipient or otherwise, and, the eye aside, it had not, either from disease or accident, undergone any alteration of structure. It had a bad trait, which developed into a bad habit, which impaired its value. But such traits or habits constitute a vice, rather than unsoundness. Not everything which impairs the value of an animal constitutes unsoundness. No such test is recognized by any authority which we have been able to discover. Language of opinions can be found which is susceptible of a construction to the effect that a physical condition, to constitute unsoundness, should be one which depreciated value; but nowhere is it held, we believe, that whatever depreciates value amounts to unsoundness, or that the conditions stated by Baron Park need not be present. Alexander v. Dutton, 58 N. H. 282. There is no error.
WHEELER, J. (dissenting). I concur in the judgment that there is no error, but not with the reasons given in the opinion in support of that conclusion.
The opinion holds that the breach of the warranty alleged in the answer and counterclaim is "one resulting from the fact that the horse was at the time of sale unsound," and therefore the court has no occasion to inquire
The warranty alleged was "that the horse so sold was sound and true in every spot and place." The warranty proven was that "said horse was sold with a warranty that it was sound and true in every spot and place except one eye." The breach alleged was: "In fact said horse was not sound, but was unmanageable while being shod, and blind in one eye." The breach proven consisted in the horse having "a habit of becoming unmanageable while being shod."
The opinion holds the breach alleged only went to so much of the warranty as related to soundness. I am of opinion that the breach alleged went to the entire warranty, but that it, as established by the finding, meant no more than a warranty of soundness.
There were two methods of pleading the breach, preferably, by pleading the facts which described the breach, viz., that the horse had a habit of becoming unmanageable while being shod, or by negativing the terms of the warranty. The pleader chose neither method, but pleaded that "the horse was not sound, but was unmanageable while being shod, and blind in one eye."
The language of the breach pleaded, "but was unmanageable while being shod," is separated from the term, "sound * * *...
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