Eyers v. Haddem

• Decision Date: 30 November 1895
• Citation: 70 F. 648
• Parties: EYERS et al. v. HADDEM et al.
• Court: U.S. District Court — Western District of Wisconsin

70 F. 648

EYERS et al. v. HADDEM et al.

United States Circuit Court, W.D. Wisconsin.

November 30, 1895

Jackson & Jackson, for plaintiffs.

Fethers Jeffris & Fifield, for defendants.

BUNN District Judge.

This is an action brought by the plaintiffs, who are citizens of North Dakota, against the defendants, who are citizens of Wisconsin, upon a warranty in the sale of a stallion. The defendants are importers of blooded horses at Janesville Wis., and on March 11, 1893, sold to the defendants an imported stallion, by a bill of sale containing the following printed warranty:

'We hereby guaranty the above-named horse to be a reasonable foal getter, with proper care and handling. In case he should prove not to be so, we agree to replace him with another horse of same breed and price, upon delivery to us of the above-named horse at our stables without costs to us, if as sound and in as good condition as when purchased of us.'

The case was tried before a jury at La Crosse in September, 1895 and a verdict rendered in favor of the plaintiffs for $1,350. The price paid for the stallion was $2,700. The plaintiffs' evidence was directed to show that the horse, instead of being a reasonable foal getter, was what is known among horsemen as a 'ridgling,' and nearly worthless as a foal getter. The plaintiffs' evidence went to show that during the season of 1893, when the plaintiffs stood him for service, he got only about 10 per cent. of mares served with foal, and that his value was not more than that of a common workhorse, or about $150. After the evidence was in the defendants asked the court to direct a verdict in their favor, on the ground that the evidence showed that plaintiffs did not return the horse according to the conditions of the warranty, and give the defendants the opportunity to replace him with another horse. The court overruled the motion pro forma, reserving the question for further argument upon a motion for a new trial, in case there should be a verdict in favor of the plaintiffs. That motion has now been heard, and fully argued and considered, and the court is of opinion that it must be overruled. The rule is laid down in 28 Am. & Eng.Enc.Law, 827, as follows:

'In a sale of certain classes of articles, the contract of sale frequently specifies the buyer's remedy in case the warranty is not complied with. The buyer is not concluded by such a provision, however, but may waive the special remedy, and proceed as if the contract had been silent in that particular. The special remedy usually allowed in such contracts is the privilege of returning the article, if it proves not to be as warranted, and to receive back the price paid.'

And it seems to be fully supported by the authorities. One of the leading and best-considered cases on the subject is that of Manufacturing Co. v. Gardner, 10 Cush. 88. In that case the court, by Metcalf, J., says:

'When a seller, in addition to a warranty of property, makes a promise to take it back if it does not conform to the warranty, we cannot hold that such superadded provision rescinds and vacates the contract of warranty. We are of opinion that in such case the buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it and maintain an action for breach of the warranty.' The same ruling was made by the supreme court of Connecticut in an opinion by Park, C. J., in Shupe v. Collender, 56 Conn. 489, 15 A. 405. In Perrine v. Serrell, 30 N.J.Law, 454, the action was on a warranty in the sale of a horse, with a provision that if the horse did not suit he might be returned, and the seller would take him back and send one that would suit. The court held that this latter provision was independent of the warranty, and that the purchaser was not obliged to return the horse, but could maintain his action upon the warranty. In Love v. Ross, recently decided (October, 1893) by the supreme court of Iowa, reported in 56 N.W. 529, the contract was for the sale of a stallion, with a warranty that he was a reasonably sure foal getter under favorable circumstances, and in default of which the purchasers could return the stallion to the sellers in as good condition as he was then in, and the sellers would exchange him for another, giving or receiving the actual difference of value in the two animals. In my judgment the case is not distinguishable from the one at bar. It was held that the purchasers had the right to retain the horse and to recover damages for the breach of the warranty, or to return him and receive another horse in exchange upon the terms stated. Hefner v. Haynes, by the same court, decided in 1894, reported in 57 N.W. 421, holds to the same rule under a similar warranty in the sale of a stallion. The supreme court of Minnesota, in Mandel v. Buttles, 21 Minn. 391, and Fitzpatrick v. D. M. Osborne & Co., 50 Minn. 261, 52 N.W. 861, has held the same doctrine, following Manufacturing Co. v. Gardner, supra. Kemp v. Freeman, 42 Ill.App. 500, was an action upon the following warranty on the sale of a stallion:

'We warrant the animal to be sound and

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