Burns v. Limerick

• Decision Date: 16 February 1914
• Docket Number: No. 10,920.,10,920.
• Citation: 178 Mo. App. 145,165 S.W. 1166
• Parties: BURNS v. LIMERICK.
• Court: Missouri Court of Appeals

165 S.W. 1166

178 Mo. A. 145

BURNS v. LIMERICK.

No. 10,920.

Kansas City Court of Appeals. Missouri.

February 16, 1914.

Rehearing Denied April 7, 1914.

1. EVIDENCE (§ 400) — PAROL EVIDENCE — VARYING CONTRACT OF SALE.

Where a sale is made on a written contract containing a guaranty, or where the terms of the guaranty are, by consent of both parties, reduced to writing, and a sale is made on such guaranty, parol evidence contradicting or varying the guaranty is inadmissible.

2. EVIDENCE (§ 427) — PAROL EVIDENCE — VARYING CONTRACT OF SALE.

Where a stock breeder issued a catalogue announcing a public sale of jacks, which were described therein and warranted, and the auctioneer, in putting up a jack, read the description thereof in the catalogue, and stated that he was a good performer and sure breeder, but there was nothing said at any time about the warranty in the catalogue, or that it was the only warranty the owner would make, or that the owner would not be bound by any warranty unless the conditions specified in the catalogue were complied with, evidence of statements made by the owner, the day before the sale, to the effect that the jack was a good performer and sure breeder was admissible to establish a warranty, and could not be excluded on the theory that a written guaranty could not be contradicted or varied by parol.

3. SALES (§ 262) — FALSE REPRESENTATIONS — WARRANTIES.

A representation that a jack was a good performer and sure breeder, made to induce a sale thereof, is a representation of a fact, and is a warranty, when relied on by the buyer.

4. AUCTIONS AND AUCTIONEERS (§ 8) — WARRANTIES — CONTRACTS.

Where a stock breeder issued a catalogue announcing a public sale of jacks described therein and warranted to be as represented, and the auctioneer, on putting up a jack, read the description and stated that he was a good performer and sure breeder and the owner, the day before the sale, had made the same representation, the representations inducing one to buy the animal were warranties.

5. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS.

Where, in an action for breach of a warranty in the sale of a jack, there was no dispute

over the fact that a warranty was made, intended, and understood, the error in an instruction submitting the issue of representation, arising from the fact that it omitted the element of the seller's intention to warrant the jack, was not reversible.

6. SALES (§ 262) — CONTRACTS — WARRANTY.

Where a seller of a jack stated that he was a good performer and sure breeder, and knew that the buyer bought the jack only for breeding purposes, the seller must be deemed to have made the statement with the intention that the buyer should rely on it, and any secret intention of the seller was immaterial in determining the question of warranty in the sale of the animal.

7. SALES (§ 429) — BREACH OF WARRANTY — DEFENSES.

Where one sues for breach of warranty in the sale of a jack, the care the jack received after the sale was available in defense only, and was not a condition precedent to the buyer's right to recover damages.

8. TRIAL (§ 199) — INSTRUCTIONS — SUBMITTING QUESTIONS OF LAW.

A requested instruction submitting to the jury a question of law is properly denied.

9. AUCTIONS AND AUCTIONEERS (§ 8) — WARRANTY — REMEDIES OF BUYER.

Where a stock breeder issued a catalogue announcing a public sale of jacks, and the catalogue, which described the animals, declared that the seller guaranteed them to be as represented, and any animal that proved to be not as represented and was returned within 60 days would be replaced or the price refunded, but there was nothing to show that the statements in the catalogue or the statements made at the sale limited the liability of the seller on his warranty in the event the stock was returned in 60 days, the buyer, relying on the representations, could either sue for breach of warranty or return the animal and receive the price paid; the right to return being only a cumulative remedy.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by John J. Burns against A. E. Limerick. From a judgment for plaintiff, defendant appeals. Affirmed.

N. T. Gentry, of Columbia, for appellant. McBaine & Clark, of Columbia, for respondent.

TRIMBLE, J.

This is an action for damages for breach of warranty in the sale of a jack to plaintiff by defendant. Plaintiff obtained judgment in the sum of $350, and defendant has appealed.

Plaintiff, a farmer and stockman experienced in handling jacks, and living in Linn county, Mo., received a catalogue announcing a public sale of some jacks in Boone county by defendant and one Bradford. These two were not partners, but simply had a joint sale. On the day before the sale plaintiff went to Boone county and to defendant's farm to look at the jacks advertised. He looked at the jack in controversy with a view of buying him, and asked defendant about him. Defendant told him the jack was a good performer and a sure breeder. Plaintiff at the time had defendant's and Bradford's catalogue, which described the jack in the following language: "Here is a jack that makes them all sit up and take notice. He has two good ends and a good middle; a good jack for either mares or jennets. I bred two mares to this jack when he was two years old and got two mare mules. I was offered $200 for one when it was only two weeks old. This was the best mule colt I ever saw. Over 150 men saw this colt and they all said it was the best mule colt they ever saw. It was killed when it was three weeks old. The other colt sold for $155 at weaning time and weighed 630 pounds. I made a season last spring with this jack at $14 for mares, that is $4 higher than any jack ever stood in this part of the country. He got more than he could do. There were 28 jacks that stood within nine miles of me. That shows what the people think of him here. This jack had the pink eye when he was a yearling and it left his eyes a little clouded. This does not hurt his usefulness at all. He can see to get around and go anywhere he wants to. He is a good performer and sure breeder. Anybody can handle him with halter. Somebody will get a great bargain in this jack. My neighbors want me to keep this jack and agree to pay $15 to breed mares to him, but it don't suit me to stand stock and he will sell in sale for the high dollar." The next day plaintiff attended the sale, and when the jack in question was put up, the auctioneer read the foregoing description of the jack, and stated that he was "a good performer and sure breeder." The jack was finally knocked off to plaintiff for $1,000, and he took him home, caring for him in a proper manner; at least there was abundant evidence tending to show that he did.

The sale took place on February 2, 1911; the breeding season usually opens from about April 1st to April 10th. The first opportunity plaintiff had to try the jack was on March 30th. He would not perform. On April 2d he was tried again, but did no better. On April 8, 1911, he was, with difficulty, induced to breed. After that, during that season, he bred 39 mares, but only 11 had colts.

In the season of 1912 the jack bred 55 mares, but difficulty in getting him to perform was experienced every time. Plaintiff had written several letters to defendant about the jack, and on May 8th he telephoned defendant, and the latter sent a man to see what he could do with the jack, but he failed, and returned home. In addition to this, there was ample evidence tending to show that he was not a good performer nor a sure breeder; that, had he been as warranted, he would have been worth what plaintiff paid for him, $1,000, but was only worth $300 to $400. Defendant offered evidence tending to show that the failure of the jack to work was due to the way plaintiff handled him.

The catalogue also contained the following: "We guarantee every animal to be as represented in the catalogue (subject to correction on day of sale), and any animal that proves to not be as represented and returned to us in good health, condition and sound as when sold and within 60 days of date of purchase, we will replace him with another jack satisfactory to purchaser, or refund the money paid for said animal. Owing to Mr. Bradford's continued sickness we are unable to get all the pedigrees in this catalogue, but expect to have them on the day of the sale. A. E. Limerick. W. E. Bradford."

Defendant's answer admitted the sale of the jack, and denied generally the other allegations. It further set up that the only warranty or guaranty he made was the printed one just set out, and that plaintiff did not return said jack in 60 days, as in said guaranty required, and that he never offered to return said jack, and never demanded that he be replaced with another; also that the jack's failure was the result of plaintiff's handling and treatment.

Defendant contends that it was error to admit evidence that on the day before the sale defendant told plaintiff, in answer to the latter's questions about the jack, that he was a good performer and a sure breeder. This contention is based on the view that the only warranty made was contained in the written statement of the catalogue last above quoted, and therefore all antecedent oral agreements are merged into the written one, and it cannot be enlarged, contradicted, or varied from, but must constitute the sole evidence of the guaranty. This is undoubtedly the rule whenever a sale is made upon a written contract and the guaranty is contained therein, or when the terms of the guaranty are, by consent of both parties, reduced to writing, and the sale is made on that guaranty. Bates County Bank v. Anderson, 85 Mo. App. 351; Watson v. Roode, 30 Neb. 264, 46 N. W. 491; Seitz v. Refrigerator Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837. The basis of the rule is that when...