Clark v. Wooster

• Decision Date: 08 June 1906
• Citation: 64 A. 10,79 Conn. 126
• Court: Connecticut Supreme Court
• Parties: CLARK v. WOOSTER et al.

64 A. 10

79 Conn. 126

CLARK

v. WOOSTER et al.

Supreme Court of Errors of Connecticut.

June 8, 1906.

Appeal from District Court of Waterbury; George H. Cowell, Judge.

Action for breach of warranty in the sale of a horse by Horatio Clark against James B. Wooster and another. From a judgment for plaintiff against both defendants, defendant Gilbert Rogers appeals. Reversed, and new trial advised.

James A. Peasley, for appellant William Kennedy and John H. Cassidy, for appellee.

TORRANCE, C. J. The complaint in this case, as it stood when suit was begun, alleged in substance the following facts: The defendants on October 21, 1902, offered to sell to the plaintiff the horse in question, and both then warranted that it was sound, kind, gentle, and would not balk. Relying upon said warranty, the plaintiff bought said horse and paid to the defendants therefor the sum of $125. At the time of said warranty said horse was balky, unsound, unkind, and worthless, "all of which was well known by the defendants." At the trial of the case the complaint was amended by adding the following paragraph: "As a result of the aforesaid false representations and statements, the plaintiff on the ——— day of October, 1902, returned said horse to the defendants, who took the same into possession, and boarded and kept it, and on the 3d day of December, 1902, the defendant Gilbert B. Rogers began legal action against the plaintiff for the board and keep of said horse, and recovered judgment against the plaintiff for the sum of $19.81, with costs, and the plaintiff was compelled to pay to the defendant Rogers the sum of $49.88 for the board and keep as aforesaid, and the payment of said sum by the plaintiff was a loss and damage, the result of the false representations of the defendants aforesaid." The allegations of the complaint were denied by the answers of both defendants. The verdict and judgment were against both defendants for the sum of $164.88, and from that judgment Rogers alone appeals.

The evidence for the plaintiff tended to prove the following facts: The sale of the horse was made by Wooster alone, in the absence of Rogers, on the 21st of October, 1902. About this there was no dispute. The warranty and conditions of sale, claimed by the plaintiff, were made by Wooster alone at the time of sale: and the agreed price of the horse, less $5, was then paid by the plaintiff to Wooster. As part of the consideration of said sale contract, Wooster warranted, among other things, that said horse would not balk, and agreed that, "if said horse did not prove to be as warranted, it could be returned and money refunded." At the time of said sale Rogers was, with Wooster, part owner of said horse. The plaintiff accepted the horse, and it proved to be a balky horse, and for this reason he returned it to Wooster and Rogers, by leaving it on the premises of Rogers, in the presence of both, saying that he returned it because it was balky. He also then demanded of Wooster and Rogers the sum he had paid to Wooster as the price of the horse, and told them that in default of such payment "he would bring action against them." The money was not paid. "Rogers at the time made no claim that he had no interest and was in no way the owner of said horse." The evidence for Rogers tended to prove the following facts: On the 7th of October, 1902, Rogers sold said horse to Wooster, and then was paid in full for the same. Said sale was an absolute one, and the title to the horse then passed to Wooster. When, subsequently, Wooster sold said horse to the plaintiff, Wooster was acting for himself. Rogers was not present, and had then no interest, directly or indirectly, in said horse or in said sale. Within a short time after the sale to the plaintiff he and Wooster brought the horse to Rogers' house, and asked him to hitch it up to some light and heavy wagons there, in order to see if it would balk, as the plaintiff claimed it would. While Rogers was testing the horse for such purpose, the plaintiff, refusing to take or keep the horse, drove away, leaving it on the premises of Rogers. Thereupon Rogers unhitched the horse, kept it in his barn, and notified the plaintiff that he would look to him for its board. Wooster was not personally present at the trial below, but his deposition was put in evidence by his attorney, who acted for him during the trial. So far as his evidence tended to prove anything, it tended to prove that he bought the horse from Rogers, and afterwards sold it to the plaintiff and received from him therefor $115, and that he did not warrant the horse. The evidence offered by the plaintiff and by Rogers, relating to the special damages claimed by the plaintiff in the amendment made to the complaint, was substantially the same, and tended to prove the following facts: Rogers brought suit against the plaintiff for the board of the horse, and attached the horse as the plaintiff's property; and in that suit, in the district court of Waterbury, Rogers...