Grandi v. LeSage

• Decision Date: 15 February 1965
• Docket Number: No. 7465,7465
• Citation: 399 P.2d 285,1965 NMSC 17,74 N.M. 799
• Parties: , 2 UCC Rep.Serv. 455 Henry GRANDI and Kathryn Grandi, his wife, Plaintiffs-Appellees, v. R. S. LeSAGE and H. R. Claggett, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 285

399 P.2d 285

74 N.M. 799, 2 UCC Rep.Serv. 455

Henry GRANDI and Kathryn Grandi, his wife, Plaintiffs-Appellees, v.R. S. LeSAGE and H. R. Claggett, Defendants-Appellants.

No. 7465.

Supreme Court of New Mexico.

Feb. 15, 1965.

McCormick, Lusk, Paine & Feezer, Carlsbad, for appellees.

Wright & Kastler, Raton, for appellant LeSage.

E. Forrest Sanders, William W. Bivins, Las Cruces, for appellant Claggett.

CHAVEZ, Justice.

This is an appeal from a judgment ordering a rescission of plaintiffs' claim to a race horse and awarding, jointly and severally, compensatory and punitive damages.

On July 3, 1962, Henry Grandi and Kathryn Grandi, his wife, filed a complaint in two counts against defendants, R. S. LeSage and H. R. Claggett, which alleged, in the first count, that on January 6, 1962, defendant LeSage, as owner, and defendant Claggett, as his agent, employee and horse trainer, entered a race horse named 'Cur-Non' in a claiming race with a claiming price of $3,500 at Sunland Park Race Track, Sunland Park, New Mexico; that in order to enter the race and to induce qualified persons to file claims, the defendants deposited with officials of the track of 'Jockey Club Certificate of Foal Registration,' which represented Cur-Non as a horse and said representation was published in the official program; that defendants, in depositing said registration, knew said statement as to the sex of Cur-Non was false and was done with intent to induce plaintiffs and others to file claims on Cur-Non and thus defraud them; that plaintiffs, believing the statements, were induced to claim Cur-Non for the sum of $3,500, which claim was filed by them pursuant to custom and the rules of the track and the New Mexico State Racing Commission; that plaintiffs claimed Cur-Non espressly and exclusively as a stallion for themselves and others for a fee; that, prior to January 6, 1962, Cur-Non had been gelded and made useless as a breeder, and plaintiffs were thereby damaged in the sum of $3,500; that it has been the general custom that a claimant is prohibited from making a prior inspection of an entry in a claiming race; that plaintiffs abided by said custom and, upon learning of the true sex of Cur-Non, immediately made demand upon defendants for the return of the claim price and their expenses incurred; that plaintiffs have expended mileage, traveling expenses, veterinarian's fees and hospital expenses, as necessary medical treatment for Cur-Non; and plaintiffs claimed punitive damages.In the second count of the complaint, plaintiffs adopted the applicable allegations of the first count and further alleged that defendants, by depositing the registration and inducing the daily racing form to be published, warranted that Cur-Non was a horse, which warranty was false, since Cur-Non at the time was not a horse but a gelding.

On July 24, 1962, H. R. Claggett answered, admitting that he was agent and horse trainer of R. S. LeSage and that Cur-Non was entered in a claiming race at Sunland Park; that, as agent for LeSage, he deposited a certificate of registration describing Cur-Non as a horse, but that he was without knowledge as to whether said registration was published by the track in its official program; he admitted that Cur-Non was a gelding and denied all other allegations.As an affirmative defense, Claggett alleged the defense of laches.

On August 14, 1962, R. S. LeSage answered, adopting the answer of Claggett, and affirmatively alleging the defense that the rules of the New Mexico State Racing Commission, and more specifically Rule 207c, were in effect, to-wit: 'When a claim has been lodged it is irrevocable and is at the risk of the claimant.' and that plaintiffs, by removing the horse to Arizona, accepted delivery.

On February 4, 1963, trial was held.Prior to taking testimony, plaintiffs moved to amend the pleadings by adding the allegation that, upon learning of the true sex of Cur-Non, plaintiffs timely filed with the stewards of Sunland Park and with the state racing commission, their objection pursuant to the applicable rules of racing, and that the stewards and the racing commission refused to rule upon said objection, on the grounds that this was a civil matter involving property of which they had no jurisdiction.This motion was granted.

On June 17, 1963, judgment was entered in which the trial court ordered:

'1.That plaintiffs' claim of Cur-Non be, and it is, hereby rescinded and the gelding Cur-Non be and he hereby is declared to be the property of the defendantR. S. LeSage.

'2.That plaintiffs shall return Cur-Non to the defendants at Sunland Park Race Track, Sunland Park, New Mexico, upon the written request of the defendants.

'3.That plaintiffs have judgment against the defendants, jointly and severally, on their Second Count for the claiming price of $3,500.00, with interest from 6 January 1962at 6% per annum until paid.

'4.That plaintiffs have judgment on their Second Count against the defendants, jointly and severally, for the care, feeding and maintenance of Cur-Non from 6 January 1962 at $1.50 per day until the defendants request that said horse be returned to them at Sunland Park Race Track, Sunland Park, New Mexico.

'5.That plaintiffs have judgment on their Second Count against the defendants, jointly and severally, for punitive damages in the sum of $2,500.00.

'6.That plaintiffs take nothing by the First Count of their Complaint.

'7.That plaintiffs have their costs herein expended and incurred'.

From this judgment, separate appeals were timely filed by both defendants.

The facts found by the trial court, stated in narrative form, are as follows: The horse in question, Cur-Non, was foaled on April 19, 1957, in Kentucky, and on November 1, 1957, was registered with the jockey club which issued its certificate of registration showing Cur-Non to be a chestnut colt.Defendant LeSage purchased Cur-Non from the breeder in July of 1958, and 1960, at the direction of a former trainer, Cur-Non was gelded at Golden Gate Park Race Track, San Francisco, California, and LeSage knew the operation had been performed.Cur-Non was shipped to LeSage's ranch at Eagle Nest, New Mexico.In September 1961, H. R. Claggett was employed as a horse trainer and, at all times material, was acting within the scope of his employment.After employing Claggett, LeSage shipped Cur-Non to Claggett and directed him to enter Cur-Non in the racing meet in the Fall of 1961 and Spring of 1962 at Sunland Park Race Track, Sunland Park, New Mexico.At this time, Claggett, although knowing that Cur-Non was a gelding, registered Cur-Non as a four-year-old chestnut colt, this indicting his sex to be that of a stallion.At the same time, Claggett deposited the 'Jockey Club Certificate of Foal Registration' showing Cur-Non to be a four-year-old colt, and at no time did he advise the race officials that Cur-Non was a gelding.

Each racing day, from information furnished by the owners and trainers, which information is also supplied to the newspapers, Sunland Park Race Track publishes an official program showing the entries, their names, age, color and sex.This official program and the newspapers are relied upon in a claiming race by qualified persons, and was relied upon by the plaintiffs, since it is the established custom, which plaintiffs abided by, that a claimant in a claiming race is prohibited from making a prior inspection an entry that he intends to claim, other than that momentary view of the horse se he or she walks into the saddling paddock.Furthermore, prior to a race, it is the accepted practice in New Mexico, to treat a stallion by medication applied as well as freezing of the scrotum in order to draw the organs up and within the body so that the same will not hinder a horse in running, and such practice makes it difficult, if not impossible, for an observer, who has a momentary view of a horse in the saddling paddock, to determine if the horse is a stallion or a gelding.

In January 1962, plaintiffs, needing a thoroughbred stallion for breeding purposes, ascertained Cur-Non's blood lines and determined that he was entered in the 'Fonner Park Purse,' a claiming race with a claiming price of $3,500.Prior to this time, only Kathryn Grandi had observed Cur-Non, and neither plaintiff had ever inspected the horse.Therefore, believing and relying upon the statements contained in the official program, plaintiffs filed a claim for Cur-Non in accordance with the rules and custom of Sunland Park Race Track and the New Mexico State Racing Commission, for the express and only purpose of keeping him and standing him as a stallion, covering mares and getting foals for themselves and others for a fee.Plaintiffs were the successful claimants of Cur-Non and R. S. LeSage was paid the claiming price of $3,500 immediately after the race.

Following the race on January 6, 1962, plaintiffs' veterinarian discovered that Cur-Non had an old fracture of the proximal, the top portion of the sesamoid bone, and prior to January 6, 1962, defendants had the nerves of that foot blocked to kill the pain, in order for Cur-Non to be able to race.On January 27, 1962, plaintiffs, still believing Cur-Non to be a stallion, shipped him to an animal hospital in Phoenix, Arizona, for an operation on the leg.This operation, although unnecessary for breeding purposes, was done because plaintiffs believed that it would relieve Cur-Non of pain and make him a better breeder.The operation, however, was unsuccessful, Cur-Non has since been unable to race, it is doubtful that he can ever race again, and he cannot be used for breeding purposes.

Complications developed after the operation and, on March 22, 1962, Cur-Non was returned to Sunland Park Race Track and, a few days later, shipped to plaintiffs' ranch at Carlsbad, New Mexico.Immediately upon the discovery that Cur-Non was not a stallion, plaintiffs made every effort possible to locate...