Erskine v. Swanson

• Decision Date: 17 September 1895
• Docket Number: 6398
• Citation: 64 N.W. 216,45 Neb. 767
• Parties: N. N. ERSKINE v. KNUTE SWANSON ET AL
• Court: Nebraska Supreme Court

64 N.W. 216

45 Neb. 767

N. N. ERSKINE v. KNUTE SWANSON ET AL

No. 6398

Supreme Court of Nebraska

September 17, 1895

ERROR from the district court of Antelope county. Tried below before KINKAID, J.

AFFIRMED.

O. A Williams, for plaintiff in error, cited: 1 Thompson, Trials secs. 1198, 1205, 1207; Halliday v. Briggs, 15 Neb 221; Newmark, Sales, secs. 318, 320; Wallace v. Wren, 32 Ill. 148; Chandler v. Lopus, 4 Croke [Eng.], 4.

J. F. Boyd, and J. S. Robinson, contra, cited: Little v. Woodworth, 8 Neb. 284; Patrick v. Leach, 8 Neb. 536.

OPINION

RAGAN, C.

N. N. Erskine sued Knute Swanson and others in the district court of Antelope county on a promissory note. The note was given Erskine by Swanson and others in part payment of a stallion purchased by the latter of Erskine. The Swansons pleaded as defenses to the action that at the time of the purchase of the stallion and the execution of the note Erskine represented to them that the stallion was free from all defects except a small bunch on one hind foot, which Erskine stated was caused from the foot having been stepped upon, and "that the bunch was not a permanent one," and that he, Erskine, would warrant the stallion's recovery from said defect within thirty to sixty days; that Erskine further warranted said stallion to be a sure foal getter; that they, to the knowledge of Erskine, were desirous of purchasing a stallion for breeding purposes; that they relied upon the representations as to the condition and quality of the stallion made by Erskine, and purchased him in consequence of such representations, and their belief in their truth; that the representations were false; that the "bunch" on the foot of the stallion was not caused by his having been stepped upon, but was a "ring bone," from which the stallion never recovered, and which rendered him lame, unfit for service, and worthless, and that he was not a sure foal getter. The Swansons had a verdict and judgment, and Erskine had prosecuted to this court a proceeding in error.

To reverse the judgment of the district court counsel for Erskine urge upon us three arguments:

1. That the evidence does not establish a warranty. We think it does. The evidence is undisputed that at the time of the sale of the horse he was lame in the left hind foot; and the evidence on behalf of the Swansons is that on their making inquiries of Erskine as to the cause of the lameness Erskine said that he had had the horse shod shortly before and that he had corked himself; "You needn't be afraid of that lameness. I guaranty that horse. In a few weeks you won't notice it." "Why, the horse will be all right. I guaranty to you it will be all right." "He is a good, sure horse." The testimony on behalf of Erskine is to the effect that he told the Swansons that the horse had become lame after he was shod, and that he gave it as his opinion that the hoof was pared a little too much, that the horse's leg had become strained, and that in his opinion the horse would be all right in a little while. To constitute a warranty it is not necessary that the word "warrant" should be used. It is sufficient if the language used by the vendor amounts to an undertaking or assertion on his part that the thing sold is as represented. (Patrick v. Leach, 8 Neb. 530, 1 N.W. 853; Little v. Woodworth, 8 Neb. 281.) Whether the statements made by Erskine about the lameness and condition of the horse were intended by him to be warranties of the horse's soundness and qualities, or whether by such statements he intended merely to express an opinion, were questions for the jury. (Halliday v. Briggs, 15 Neb. 219, 18 N.W. 55; Wolcott v. Mount, 36 N.J.L. 262.) If Erskine knew that the representations made by him in regard to the soundness and qualities of the horse were regarded by the...