Highsmith Bros. v. Hammonds

• Decision Date: 12 June 1911
• Parties: HIGHSMITH BROS. v. HAMMONDS.
• Court: Arkansas Supreme Court

138 S.W. 635

HIGHSMITH BROS. v. HAMMONDS.

Supreme Court of Arkansas.

June 12, 1911.

Appeal from Crawford Chancery Court; J. V. Baurland, Chancellor.

Action by Highsmith Bros. against John Hammonds. From an adverse decree, plaintiff appeals. Reversed and remanded, with directions.

This action was brought by appellants to foreclose a mortgage given by appellee to secure the payment of his notes for the purchase money of a stallion sold to him. Appellee admitted the purchase of the stallion, the execution of the mortgage and purchase-money notes, and set up a breach of a verbal and written warranty made to him on the purchase of the horse, and claimed damages on that account. The guaranty contract was introduced in evidence by appellee as follows: "Guarantee Contract. Highsmith Bros., Importers of French Draft, Percheron, Belgian, and German Coach Stallions. Mulberry, Ark., March 31, 1908. Guarantee on the German Coach Stallion Named Lustig. No. 4,585. We, the undersigned, guarantee the above-named stallion to be a fifty per cent. breeder, bred to regular breeding mares. Said mares to be tried and retried and correct dates of service and trial and retrial accurately kept. Providing the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise. If the said stallion should fail to be a fifty per cent. breeder with the above treatment, we agree to take the said stallion back, and give the said company another stallion of equal value. Providing the said stallion is returned to us at Robinson, Illinois, in as sound and healthy condition as he now is by 1st day of April, 1909. Highsmith Bros., Robinson, Ill."

The testimony further tended to show that of the mares served by the stallion much less than 50 per cent. of them had brought colts; that appellee had kept no record of the dates of service, and could not swear the mares were regular breeding mares. They were tried and retried. "I couldn't give the exact date," was his statement. He claimed to have written one letter to appellants about the horse, which was returned uncalled for and since lost, and did not offer to return him to appellants before the 1st day of April, 1909, nor at all. He had sold the horse to his son-in-law, who had him in Kansas at the time of the trial.

The court found that the writing introduced in evidence by appellee was the contract of purchase, sale, and guaranty between the parties; that the horse failed to fulfill the guaranty,...