Berkey v. E. Lefebure

• Decision Date: 10 May 1904
• Parties: FRANK BERKEY v. E. LEFEBURE AND SONS, ET AL., Appellants
• Court: Iowa Supreme Court

99 N.W. 710

125 Iowa 76

FRANK BERKEY v. E. LEFEBURE AND SONS, ET AL., Appellants

Supreme Court of Iowa, Des Moines

May 10, 1904

Appeal from Linn District Court.--HON. W. N. TREICHLER, Judge.

On the 12th day of March, 1901, the plaintiff bought a stallion of the defendants Lefebure & Sons for $ 1,300. He paid $ 20 of the purchase price at the time, and there was then executed to him the following written contract of sale and warranty:

Said Lefebure & Sons have this day sold to said second parties a stallion described as follows: The Belgian Draft Stallion Samson 834 (13006), for the consideration of $ 1,300 dollars to be paid as follows: $ 20 down and $ 1,280 upon delivery of stallion sound and in good condition at second parties' farm. Said Lefebure & Sons hereby warrant that said stallion will get in foal sixty per cent. of the mares he properly and carefully serves during the season of 1901, provided he hereafter contracts no disease, and is kept in a proper careful manner as a breeding stallion, and provided that such mares are regularly returned for service during the season and all reasonable efforts and precautions are taken by said second parties and the owners of such mares to get them with foal by said stallion. If, after using the season of 1901 ending October 15th, 1901, he proves not to be a foal getter as above stated, then said second parties, upon returning said stallion to said Lefebure & Sons, at their stables at Fairfax, Iowa by February 15th, and not before January 1st 1902, and provided he is substantially in the same condition in health and flesh, and sound in every respect as said Lefebure & Sons represent him to be, may receive in exchange therefor from said Lefebure & Sons anther stallion held by them for sale, same to be as sound and in good condition and of like value.

The horse was delivered at the plaintiff's farm, and a check given for the balance of the purchase price, but very soon thereafter the plaintiff became convinced that the horse was not sound, and on the 20th day of March he wrote to the defendants as follows:

On looking the horse over after the man was gone, I find that he has a spavin or jak. Now that is not what the horse was represented to me. The contract says that he is to be sound and all right, and he falls short a long ways. I might have thought that it was unknown to you had not the shoe been fixed to keep him from showing lameness. He also seems to be heavy, but have not decided that for sure. Now I do not want more than what is right, and if you will adjust the matter in a fair way we will get along all right. Let me hear from you soon.

There was no written response to this letter, but a few days later one of the defendants went to the plaintiff's farm, where the parties finally agreed upon an adjustment of the difficulty, the plaintiff paying the defendants $ 1,000 in cash and executing and delivering to them a note in the following language:

Two years after date, I promise to pay to the order of E. Lefebure, at the Home Savings Bank, at Des Moines, Ia., One hundred dollars ($ 100) with interest at the rate of 6 per cent. per annum from date, provided a certain stallion named Samson, sold to me, is in good serviceable condition as a stallion should be, and sound as he now is, at that date. If not in such condition then this note to be void.

The plaintiff thereupon kept the horse and the contract of sale and warranty originally given to him. Within the time specified in the contract, the plaintiff took the horse to the defendants' barn in Fairfax, and requested another horse in exchange, in accordance with the contract, claiming that he had failed to prove a foal-getter, and that the warts on the scrotum had increased in number and size. The defendants refused to make any exchange, whereupon the plaintiff refused to keep the horse, left him at the defendants' barn, and started away. The defendants followed him with the horse, however, and again refusing to keep him, threatened to turn him loose in the highway if the plaintiff did not take charge of him; the plaintiff thereupon took the horse back to his farm, and soon thereafter began this suit to recover the price paid for him and certain damages. There was a trial to a jury, and a judgment for the plaintiff. The defendants appeal.

Affirmed.

Voris & Haas and C. T. Jones, for appellants.

Read & Read, for appellee.

OPINION

SHERWIN, J.

The question of first importance in this case is whether the agreement of the 29th day of March, partly oral and partly expressed in the note then executed to the defendants superseded the written contract of warranty made when the horse was purchased. It is contended by the appellants that it did, and that the contrary finding by the jury is not supported by sufficient evidence. It is also said that the court should have construed the transactions of March 29th as abrogating the earlier contract. The note does not in terms supersede the original contract with respect to...