Childs v. Emerson

• Decision Date: 27 March 1906
• Citation: 93 S.W. 286,117 Mo. App. 671
• Parties: CHILDS v. EMERSON.
• Court: Missouri Court of Appeals

93 S.W. 286

117 Mo. App. 671

CHILDS v. EMERSON.

St. Louis Court of Appeals. Missouri.

March 27, 1906.

SALES—CORRESPONDENCE — CONSTRUCTION — EXPRESS WARRANTY.

Where a letter proposing to sell a jack, described his height, etc., and the purchaser in ordering described the jack in the language used by the seller, there was an express warranty that the animal was as represented in the offer to sell.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by W. O. Childs against Luke M. Emerson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The suit is on an alleged breach of warranty in the sale of a jack. Plaintiff, a resident of the state of Washington, being desirous of purchasing a fine jack for breeding purposes, and having the name and address of the defendant as an importer and breeder of such animals, wrote to him about December 1, 1901, a letter of inquiry relative to his prospective purchase, and in reply to this letter the defendant wrote plaintiff December 8th as follows:

"Bowling Green, Mo., Dec. 8th, 1901. Mr. W. O. Childs, Hesseltine, Wash.—My Dear Sir: Your favor 4th inst. received. I will say I am glad to hear from you. I would be glad to get my fine big imported mammoth jacks introduced into your country. I will sell you one of my best big 15½ hand jacks, weigh 1,000 pounds. I will sell you a first-class good jack cheap. My jacks are all jet black with white points, 15 to 16 hands high. I am the largest dealer in fine mammoth jacks in the world. You trust to my honesty to select you a good jack and I will guarantee you will get what you want. I have a fine big 5 year old jack that has proved himself a grand breeder, sure foal getter, I will sell you for $800.00. He is 15½ hands high, large smooth flat bone, long tapering ears, stands up like a fine coach horse, price $800.00; his moneys worth is $1,200.00 to $1,500.00. I ship by express, will guarantee the charges won't exceed $50.00 fifty dollars. I will guarantee safe arrival. I will guarantee this jack will get you 65 to 75 head of colts the first year if you will breed him to 90 or 100 good mares. The colts sired by him sold here this fall for from 60 to 75 per head. Mules are scarce and high in this country. The English government has left $10,000,000 (ten millions dollars) in this country in last two or three years. Let me sell you a half doz. good jacks, you can get the mares. Nothing will pay better than raising mules; they are one of the main stays of the world the w. over `see.' I can sell you good jack for 400. I can sell you a better one for $600.00. I will sell you one of the best jacks for $800.00. The jack I have selected and will hold him until I hear from you, if you will please answer on receipt of this letter. Send me draft to the peoples Saving Bank, Bowling Green, Mo., Pike Co., and instruct them to turn said draft over to me when I give them the express receipts showing that I have shipped jack to you, and prepaid express charges. Please ans. [Signed] Luke M. Emerson.

"I have on hand at present 100 head of fine first class jacks and jennets to select you one from. [Signed] L. M. E."

After the receipt of this letter, about December 25th of the same year, the plaintiff answered, saying to defendant that he wanted "the best jack according to [his] letter, the imported mammoth jack, 5 years old, 15½ hands high, weighing 1,000 pounds, with large smooth flat bones with white points, standing up like a fine coach horse, with long tapering ears, at the price of $800.00 mentioned," and that he was holding his wheat crop and could not pay it all cash down, but would pay $400 cash and give defendant his note for $400, due one year after date, with interest. In response to this letter defendant wrote plaintiff as follows: "Bowling Green, Mo., Jan. 1, 1902. W. O. Childs, Esq., Hesseltine, Wash.—Dear Sir: Your favor 25th to hand. I note what you say, you say you will put $400 cash in jack and give first class paper for bal. I will accept your offer. Send same to Peoples Saving Bank, Bowling Green, Mo. What bank do you do business with in Wilburn? I note what you say about your fine land, 400 and 623 acres. It looks like big fortune to me. I think it will make you rich in a few years. A good jack will make you and your neighborhood more money than anythink, sure. Mules are what you must have. Just as soon as I hear from you I will ship the grand fine jack I have selected for you. I know you will be well pleased with him. You could not do any better if you were here yourself. Hoping we will get the deal through all right. I remain, Luke M. Emerson." Plaintiff forwarded the $400 and the note, which was approved, and defendant shipped to him by express a jack which upon arrival at its destination, instead of weighing 1,000 pounds, weighed only 665 pounds; instead of being 15½ hands high, was only 13 hands and 1 inch in height; instead of having large smooth flat bones, it had only medium bones. It was injured in its rear legs, and did not "stand up like a fine coach horse." The jack is mentioned by plaintiff's witnesses as resembling a "jack rabbit," and that "his ears were the biggest thing about him." He proved not to be a sure foal getter, and instead of getting 65 to 75 colts by 90 to 100 mares the result did not exceed 50 per cent. His value was shown to be from $300 to $400, instead of $1,200 to $1,500 as represented. The plaintiff declined to receive the animal upon his arrival and caused his attorneys to so notify defendant, but as defendant neither answered the letter nor made any move towards reclaiming the jack plaintiff finally, after several months waiting upon him, took the animal into his possession, and...