Faust v. Koers

• Court: Missouri Court of Appeals
• Writing for the Court: BLAND, P. J.
• Citation: Faust v. Koers, 86 S.W. 278, 111 Mo. App. 560 (Mo. App. 1905)
• Decision Date: 21 March 1905
• Parties: FAUST, Respondent, v. KOERS, Appellant

86 S.W. 278

111 Mo.App. 560

FAUST, Respondent, v. KOERS, Appellant

Court of Appeals of Missouri, St. Louis

March 21, 1905

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

AFFIRMED.

STATEMENT.

On April 11, 1904, plaintiff bought a horse of defendant for which he paid him one hundred and fifty dollars cash. In his petition plaintiff alleges that defendant warranted the horse to be sound, whereas, in fact, he was unsound, and on discovering his unsoundness he offered to rescind the sale by tendering the horse back to the defendant and demanding the return of the purchase-price; that defendant refused to rescind the sale and receive the horse and pay back the purchase money.

The suit is to recover the purchase money and the expense of keeping the horse after the tender was made.

Plaintiff testified that he did not make a close examination of the horse before purchasing him; that he knew the defendant well and asked him if the horse was "absolutely sound" and defendant replied that he was "in every particular," and that he (plaintiff) replied, "If that is the case I will take your word for it and don't care about any receipt," and handed the one hundred and fifty dollars over to defendant and led the horse off to a livery stable. Plaintiff's evidence tends to show that within eight or ten days after he got the horse he discovered that he had curb (described as an incurable disease) and thrush (described as a curable one). His evidence tends to show that curb could not develop in less than three or four months, and that as soon as he ascertained the horse was unsound he offered to rescind the contract by tendering the horse back to defendant and demanding of him the purchase price. This was refused by the defendant. After defendant refused to take the horse back, plaintiff took him to a livery stable and kept him there, paying for his keep until such time as he could turn him on pasture. During the period he kept the horse in the livery stable, plaintiff testified that he drove him occasionally for the express purpose of exercising him to prevent him becoming stiff by standing in the stable. Defendant's evidence tends to show that the horse was sound at the time he sold him to the plaintiff, and that after plaintiff tendered the horse back to defendant plaintiff used the horse. The only use, however, defendant showed was that on one occasion plaintiff took a young lady driving out to Forest Park and back. Plaintiff's testimony is that on this occasion he drove the horse expressly for the purpose of giving him exercise, and that the young lady's presence in the buggy was a mere accident, not a prearranged affair.

In respect to the warranty, the defendant testified that he did not warrant the horse; that the horse was in a lot and was looked over by the plaintiff several times before he bought him, and when the plaintiff asked him if the horse was sound his reply was, "Yes, as far as I know." The evidence shows that curb is a disease not readily detected by an examination and that one unfamiliar with horses, one not an expert, would not be likely to detect the presence of curb by an examination. Plaintiff's evidence is that he is not an expert and that he did not know what ailed the horse until he had him examined by a veterinary surgeon.

The issues were submitted to the court sitting as a jury, who found for the plaintiff and assessed his damages at one hundred and seventy-five dollars. Defendant appealed.

Judgment affirmed.

Stern & Haberman for appellant.

(1) Respondent sued upon a warranty. No warranty was proved. Galbreath v. Carnes, 91 Mo.App. 514; Lindsay v Davis, 30 Mo. 410; Peers v. Davis, 29 Mo. 189.

(2) A warranty does not cover visible defects. Thompson v. Botts, 8 Mo. 713.

(3) By acts of dominion after the attempted rescission respondent lost his right to recover. McColloch v. Scott, 52 Ky. 172, 56 Amer. Dec. 561; Benjamin on Sales, 6th Ed., sec. 703; Glass Co. v. Friedlander, 84 Wis. 53; 24 Amer. & Eng. Ency. of Law, 2nd Ed., 647; O'Donnell v. Farrar, 45 N. E. (Ill.) 283; Aultman v. Theirer, 34 Ia. 272; Churchill v. Price, 44 Wis. 540; Pintard v. Martin, S. & M. 126; Downer v. Smith, 32 Vt. 1; Horn v. Buck, 48 Md. 358; Leavenworth v. Packer, 52 Barb. (N. Y.) 132, at 135.

S. T. G. Smith for respondent.

OPINION

BLAND, P. J. (after stating the facts).

The only declaration of law asked was by defendant to the effect that under the law and the evidence plaintiff could not recover. The refusal of this declaration of law is the only error assigned. Defendant contends that it should have been given for two reasons: first, that the evidence is not sufficient to show that defendant warranted the horse to be sound and, second, that by acts of dominion exercised by plaintiff over the horse after the tender and offer to rescind, he lost his right to recover. In considering the question as to whether or not there was evidence sufficient to authorize the trier of the facts to find that the...