Cohn v. Chapman

• Decision Date: 24 October 1921
• Docket Number: 180
• Citation: 234 S.W. 42,150 Ark. 258
• Parties: COHN v. CHAPMAN
• Court: Arkansas Supreme Court

234 S.W. 42

150 Ark. 258

COHN v. CHAPMAN

No. 180

Supreme Court of Arkansas

October 24, 1921

Appeal from Prairie Circuit Court, Southern District; George W Clark, Judge; affirmed.

Judgment affirmed.

Trimble & Trimble and John W. Newman, for appellant.

Oral evidence of a warranty is inadmissible when a complete written instrument evidences a sale. 80 Ark. 508; Federal Truck Motors Co. v. Thompson, 149 Ark. 664.

Cooper Thweatt, for appellee.

There was no error in the instruction of the court on the subject of warranty as to the first horse that died. 124 Ark. 31. The objection to the instruction should have been specific. 134 Ark. 218; 78 Ark. 327; 110 Ark. 118; 115 Ark. 118; 111 Ark 196; 73 Ark. 594; 87 Ark. 607; 98 Ark. 88; 9 Encyclopedia of Evidence, p. 366; 22 C. J. 1295. Notice of the breach was not necessary. 53 Ark. 159.

OPINION

WOOD, J.

The appellant instituted this action against the appellee to recover judgment on an instrument executed February 28, 1918, and due November 1, 1918. The first part of the instrument was a regular promissory note in the sum of $ 200 given as the consideration of the purchase price for a certain brown mare. The latter part reserved title in the seller to the animal until the purchase price was paid, and contained other provisions evidencing the contract of sale. The appellee answered admitting the execution of the "note" and set up by way of counterclaim that the "note" was a part of the purchase price of $ 400 for two horses that the appellee had bought from the appellant; that $ 200 had previously been paid by check; that before any of the purchase price was paid or the "note" executed the appellee directed appellant's attention to the fact that one of the horses appeared sick; that appellant verbally warranted that the horses were sound. The appellee alleged that he relied upon the warranty and accepted the horses and gave his check and note for the purchase price. He further alleged that one of the horses at the time was diseased and unsound, and died in less than twenty-four hours thereafter, to the damage of appellee in the sum of $ 200. Appellee further alleged that in April of that same year he purchased of the appellant a horse for which he paid the sum of $ 150, and that before appellee accepted the horse appellant warranted the same to be sound in every way; that the horse was not sound and died in about seven days after the purchase; that appellee was damaged in the sum of $ 150 by reason of the death of this horse. He prayed judgment on his cross-complaint in the sum of $ 350 and asked that the judgment offset the note held by appellant in the sum of $ 200 and that appellee have judgment over against the appellant in the sum of $ 150.

The appellant answered the cross-complaint and denied all of its allegations; denied that the horse for which the note was given was unsound or diseased; denied that he warranted the same to be in good condition. He alleged that the horse for which the "note" was given was worth $ 200, and that the appellee was present, examined the horse and was satisfied with same and made no complaint until after the "note" in suit became due. He also denied that he warranted the second horse purchased by appellee from appellant in April of the same year for which the appellee paid $ 150. He alleged that this second horse was sound, and that the appellee was present, examined the horse, and made no complaint of same until after the institution of the suit. Appellant prayed that the counterclaim of appellee against him be dismissed, and that he have judgment as prayed in his complaint.

The testimony of the appellant was to the effect that he sold appellee horses, and that appellee was due him the sum of $ 200 on the purchase price as evidenced by appellee's "note," the instrument upon which the cause of action is based. He stated that not a word was said at the time about the unsoundness of one of the horses. Appellant guaranteed the horses to be serviceable and sound on delivery. He stated that Chapman knew as much about a horse as appellant; knew a good horse from a bad one; that when the horses were taken from appellant's stables they were all right; that in about three weeks, or maybe longer, the appellee came back and told the appellant that one of the horses had died. Appellant told the appellee that he was sorry to hear of the loss of the horse, and then sold him another horse (worth $ 250) for $ 150, so that he would lose $ 100 on the price of that horse; that the appellee agreed to this and gave the appellant a check for $ 150 and seemed satisfied. Appellant heard no more from the appellee until the note became due and the appellee refused to pay the same. The appellant stated that he would not sell unsound horses; that he had a man paid especially to look after his barn. Appellant "had the reputation of selling the best mules and horses in the country." The appellant did not owe the appellee anything because when he delivered the horses to him they were sound. When the appellee came back and told appellant that he had lost one of the horses, appellant agreed to let him have a $ 250 horse for $ 150. Nothing was said at the time about this horse not looking right. The appellee gave appellant a check for $ 150 for the last horse, which was in settlement of the whole matter between them, and appellee said that he was satisfied. The testimony of the appellant was corroborated by another witness who was in the employ of the appellant at the time and was present when the sales were made. The appellant guaranteed that the horses were serviceable and sound at the time they were delivered, and so far as witness knew they were sound. When appellee bought the last horse of appellant, the purchase price was $ 250, and appellant agreed to let appellee have the same for $ 150 and appellee was perfectly satisfied.

The testimony of the appellee tended to sustain the allegation of his counterclaim. He stated that on the day of the first purchase he went away to St. Louis and was gone about a week and upon his return one of the horses was dead. He notified the appellant to that effect, and appellant stated that he would get appellee another horse. The matter drifted along for some time, and appellant called the appellee over the telephone, stating that he had a horse that would match. Appellee then went to see appellant to get another horse and reminded appellant that he was to get appellee a horse to take back in the place of the one that had died. Whereupon the appellant replied that he had to have $ 150 on the horse that he then proposed to let appellee have. He stated that he would make appellee a special price of $ 150. Appellee had to have the horse, and appellant said he would guarantee it absolutely. Appellee then took the horse home, and it died in about a week. Appellee thought that he notified appellant, but did not know whether it was immediately after this last horse died or not. The appellant wrote the appellee when the note was due, and also called him over the telephone and asked why the note was...