J. Crouch & Sons v. Morgan

• Decision Date: 23 February 1909
• Citation: 116 S.W. 475,135 Mo. App. 611
• Parties: J. CROUCH & SONS v. MORGAN et al.
• Court: Missouri Court of Appeals

116 S.W. 475

135 Mo. App. 611

J. CROUCH & SONS v. MORGAN et al.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. SALES (§ 287)—BREACH OF WARRANTY— DEFENSE.

One giving a note for the price of an interest in a horse warranted to be a sure foal getter may, on the discovery of a breach of the warranty, offer to return his interest, and thereby relieve himself from liability on the note in the hands of the seller, but he cannot retain his interest and totally defeat the note, if the horse is worth anything.

2. SALES (§ 446)—BREACH OF WARRANTY—INSTRUCTIONS.

Where, in an action by the seller of a horse against two of numerous buyers of shares in the horse under a warranty, it appeared that defendants, on discovering a breach of the warranty, offered to return to the seller their shares, and that all the shareholders met in a body and offered to return the horse, instructions cutting out the defense of breach of warranty, unless defendants returned the horse, were properly refused, because inapplicable to the evidence.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Action by J. Crouch & Sons against C. A. Morgan and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

This instruction was given for defendants: "The court instructs the jury that if they find and believe from the preponderance or greater weight of the evidence in this case that at the time the defendants, Ennis and Morgan, signed the notes in question, that Clark, the agent of the plaintiff, told them that the horse was a sure foal getter and that his colts would be solid colors, that they would be either blacks, browns, or bays, and if you further find that these statements and representations induced defendants to sign and execute said notes and that they would not have signed them but for said representations; and if you find that said horse was not a sure foal getter, that he did not get colts of a solid color as represented, and that defendants when they found out that the horse was not what plaintiff had represented him they offered to return what interest they had back to plaintiff, then you will find the issues for defendants." This instruction was given for plaintiff: "The court instructs the jury that if you believe from the evidence that plaintiff in this case was prevented, by acts of defendants, from making any and all representations and warranties made by plaintiff to defendants good, then your finding must be for plaintiff."

These instructions were requested by plaintiffs and refused:

"The court instructs the jury that under the law and evidence of this case your finding must be for plaintiff for amount of notes and interest."

"If the jury believe that the horse was the consideration of the notes and was worth anything, and that defendants have failed to give notice of his defects in a reasonable time to the plaintiff or to return the same, then they are presumed to have acquiesced in the defect, and are not entitled to any deduction from the amount of the note."

"The court instructs the jury that defendants having set up a breach of warranty as a defense to the notes are precluded from retaining the horse or any interest in the horse, if the horse be of any value, and at the same time defeat the notes, and if the jury believe from the evidence that the horse is of any value, and further believe that defendants have not returned their interest to plaintiff according to the terms of agreement under which they signed the notes, then your finding must be for plaintiff."

"The court instructs the jury that if they believe from the evidence that the horse was sold to defendants and defendants signed the notes in question under the representation and agreement that the horse was a sure, satisfactory foal getter, and would get colts of black, bay, and brown in color, and, in the event he did not come up to these representations, then defendants were, by July 1, 1906, to return the horse to the barn of plaintiff's at Sedalia, Mo., and pick out another horse of...