Ericksen v. Poulsen

• Citation: 389 P.2d 739,15 Utah 2d 190
• Decision Date: 02 March 1964
• Docket Number: No. 9973,9973
• Parties: d 190 Howard B. ERICKSEN, Plaintiff and Appellant, v. Robert L. POULSEN, Defendant and Respondent.
• Court: Supreme Court of Utah

Page 739

389 P.2d 739

15 Utah 2d 190

Howard B. ERICKSEN, Plaintiff and Appellant, v. Robert L. POULSEN, Defendant and Respondent.

No. 9973.

Supreme Court of Utah.

March 2, 1964.

George W. Preston, George D. Preston, Logan, for appellant.

Walter G. Mann, Reed W. Hadfield, Brigham City, for respondent.

CROCKETT, Justice:

Plaintiff sued to recover for breach of warranty and other damages alleging that a stallion he purchased from the defendant for breeding purposes proved to be sterile. The trial court indicated that it believed the plaintiff's evidence as to the horse's sterility, but would deny recovery on the ground that plaintiff 'delayed too long after ascertaining that Applejack could not impregnate the mares before he attempted to rescind.'

On May 29, 1961, plaintiff Ericksen bought the horse, Applejack, a 21-month-old Ponies of America stallion, for $1,500. Both parties understood that the horse was to be used for breeding purposes. Defendant, Dr. Robert L. Poulsen, a veterinarian, advised plaintiff that the horse had been used successfully for that purpose and that if he was used not more than twice a week he would be all right. The horse was taken to Montana and used as directed but the mares served did not 'settle' but returned to estrus. The trial court found that the horse was, 'bred to several mares, but no mares bred by said stallion * * * became in foal.'

Pursuant to motions of both parties to amend the findings, the court added a finding that he was 'unable to make any finding as to whether said animal was in fact infertile at the time of the sale'; but also reiterated the finding that:

'That the P.O.A. stallion called Applejack, after having been transported from Tremonton, Utah to Hamilton, Montana was incapable of getting offspring and was unfit for the purpose for which it was purchased by the plaintiff.'

The evidence leaves no doubt as to the correctness of the latter finding. To be concerned with whether the horse was sterile at the instant of sale or not would be hyper-technical. It was the understanding and intent of the parties that the horse was to be hauled to Montana and used on plaintiff's ranch. There is no indication of any untoward incident occurring, or of any mistreatment of the horse, which might have affected his fertility. On the contrary the evidence is that the plaintiff was careful and concerned for the horse's welfare; that he gave him good care and followed the directions of defendant, Dr. Poulsen, and of his own veterinarian, Dr. J. W. Jackson, as to treatment of the horse; that after his fertility first became suspect, in accordance with advice, he rested the horse, first for a month, then 'until fall'; and that although a number of attempts at breeding were made, they were all unsuccessful. In the fall the horse contracted distemper, apparently recovered, and then in December, 1961, died from causes unrelated to his sterility. There was some correspondence between the parties about a possible adjustment of the difficulty, but it resulted in an impasse, and this action was commenced in December, 1962.

The defendant urges that he sold the horse in good faith believing him to be fertile. There appears no reason to doubt that he acted in good faith in the matter. In all likelihood this was also true of the horse. But this is not a case of fraud, which requires wilful wrong or failure, but of breach of warranty, in which good faith does not suffice. Regardless of good or bad faith, the fact remains that the only reasonable...