Dietrich v. Badders

• Decision Date: 26 November 1913
• Citation: 27 Del. 499,90 A. 47
• Court: Delaware Superior Court
• Parties: MARY DIETRICH v. MABEL P. BADDERS and BENJAMIN BADDERS

90 A. 47

27 Del. 499

MARY DIETRICH v. MABEL P. BADDERS and BENJAMIN BADDERS

Superior Court of Delaware, New Castle County

November 26, 1913

Superior Court, New Castle County, November Term, 1913.

ACTION OF ASSUMPSIT (No. 40, January Term, 1913) upon a promissory note, made by the defendants, payable to the order of the plaintiff, for the sum of two hundred and fifty-nine dollars and ninety-two cents, being the price bid for a mare and a rake, at a public vendue of certain property of the plaintiff, together with lawful interest and protest charges. The defense was partial failure of consideration, and damages sustained, by way of recoupment, the contention being that the mare was warranted to be sound or no sale, while in fact she was foundered at the time of sale, and damages were sustained in excess of plaintiff's demand. The facts appear in the charge of the court.

Verdict for plaintiff.

William F. Kurtz for plaintiff.

Reuben Satterthwaite, Jr., for defendants.

Judges WOOLLEY and RICE sitting.

OPINION

WOOLLEY, J., charging the jury:

Gentlemen of the jury:--This action was instituted by the plaintiff against the defendants upon a promissory note, made by the latter to the order of the former, whereby the plaintiff seeks to recover from the defendants the sum of two hundred and fifty-nine dollars and ninety-two cents, the principal of the obligation, with lawful interest thereon from the fifth day of October, A. D. 1912, together with the sum of one dollar and seventy-one cents protest charges. The plaintiff proves that the note was given in payment of the purchase price of a mare and a rake, sold by the plaintiff and purchased of her by the defendants at a public vendue held upon her premises in this county on the fifty day of October, A. D. 1912; that the price of the mare was two hundred and forty dollars and the price of the rake was eight dollars, the difference between the aggregate of the two sums and the face of the note being the interest added; that the note was protested and the sum demanded remains unpaid.

The defendants admit the purchase of the mare and rake at the prices stated, and that the note was given in payment therefor, but for defense avail themselves of the terms of a statute of this state, Chapter 588, Volume 20, Laws of Delaware, which provides "that want or failure in whole or in part of the consideration of bills and notes for the payment of money may be shown as a defense total or partial, " when, as in this case, the action is between the original parties thereto, and in proof of a total failure of the consideration of the note, maintain, that the mare was sold by the plaintiff under an express warranty of her soundness, that at the time of the sale and for a period theretofore and until thereafter returned, the mare was unsound, which condition was discovered by them shortly if not immediately after receiving her, that they promptly acquainted the plaintiff with the condition of the mare, by notifying the plaintiff in person the day after the sale and twice later by informing her son, who it is claimed had at the vendue announced the mare to be sound, and as the mother's agent represented her in the transaction, that the mare was sick, and after caring for and doctoring the mare from the date of purchase until the thirtieth day of March following, working her as it is claimed, but two times during this interval, they returned her to the plaintiff. Upon this representation of facts the defendants maintain there is a total failure of the consideration for the note, in that the contract of sale was vitiated by a breach of the plaintiff's alleged warranty of the soundness of the mare and that by way of recoupment, the defendant sustained damages in the manner testified to and to an amount in excess of the total of the plaintiff's demand against them upon the note, for money laid out and expended in the care of the mare, the cost of her keep, medical attendance, medicines, etc.

In reply, the plaintiff maintains that in the sale of the mare, neither she nor any one with her authority warranted the mare to be sound; but if it should be found that by expression or implication, such a warranty may be attributed to her, then in fact the mare was sound at the time of the sale and consequently she committed no breach of warranty as claimed by the defendants.

The plaintiff maintains that under the statute which permits the maker of a note to show a partial or total failure of consideration of the note, when sued upon, the maker of the note may not include and embrace therein the elements of damage that may be consequent therefrom and accumulate in respect thereto, even though the same may be included and recovered in a counteraction upon the same matter, instituted by the maker against the payee. This we do not believe to be the law, as the obvious intent of the statute is not to permit the maker of a promissory note to vary the terms thereof, but when sued thereupon by his original promisee, to enable him to make the same claims or demand with respect to the matter that constituted a want or failure of consideration of the note, as he could have made, if he himself had instituted a suit against the promisee on the same matter out of which the consideration of the note arose. If in this instance, no note had been given for the purchase price of the mare, and the plaintiff had sued directly on the contract of sale, the defendants could have replied a breach of a special warranty and have recouped in damages. Obviously then, they may attempt the same thing in defending upon the note upon the want of consideration.

There is in this case no dispute as to the sale of the mare. This is admitted. There is however, a dispute as to the terms of the sale, and from the controversy that revolves thereabout, you are to extract the truth. For this truth you are to reach into the testimony, of which you are the sole and exclusive judges and which by the Constitution of this state we are forbidden to consider or discuss with you. In seeking the truth, that is, what constitutes the true and precise terms of this sale and the compliance or violation thereof by all the parties, you are to reconcile the testimony if you can, and if you cannot you are to accept that testimony which you consider to be most worthy of belief and reject that which you consider least worthy of belief, having regard to the intelligence, interest and bias of the witnesses and their capacity and inclination to see, and understand and remember that to which they have testified.

The first question for you to consider and determine is whether the sale of the mare was made with a warranty as to her soundness. If, at the time of the sale, there was no warranty as to her soundness made by, or with the authority of, the plaintiff, then the defendants purchased the mare at their own risk. If they made the purchase at their own risk, there is then no failure of a consideration of the note, and your verdict should be for the plaintiff for the principal, interest and protest charges proven.

If you find that at the time of the sale there were representations made by the plaintiff or by one authoritatively acting for her, as to the mare's soundness, you are next to determine whether they amount to a warranty. Whether the plaintiff in this case, who is the mother of the son managing the sale, authorized the son to make the warranty, is to be gathered or it may be implied, from the general authority which she permitted him to exercise in managing her sale. No particular words or formula are necessary to create a warranty. Every affirmation made by the vendor or her qualified agent at the time of sale, as a fact and as an inducement to the sale, if the buyer relies thereupon, amounts to a warranty. Whatever representations are made by the seller at the time of the sale as to the quality of the thing sold is generally held in law to amount to an express warranty. Any disease or infirmity of the mare not visible and palpable at the time of the sale which impaired her usefulness, would render her not sound, and whether known to the plaintiff or not would constitute a breach of the alleged warranty--if you find a warranty did exist. Ellison v. Simmons, 6 Penne. 200, 65 A. 591.

If you gentlemen of the jury, believe that the mare was warranted and was sound as warranted on the day of sale, then the plaintiff is entitled to a verdict for the full amount of the note,...