Jacobs v. Warthen

• Decision Date: 20 November 1913
• Citation: 115 va. 571,80 S.E. 113
• Parties: JACOBS v. WARTHEN.
• Court: Virginia Supreme Court

80 S.E. 113

115 va. 571

JACOBS

v.WARTHEN.

Supreme Court of Appeals of Virginia.

Nov. 20, 1913.

1. Sales (§ 359*)—Actions—Evidence—Sufficiency.

In an action for the purchase price of horses, where defendant pleaded a breach of warranty, evidence held sufficient to support the judgment for plaintiff.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. § 359.*]

2. Appeal and Error (§ 690*) — Record — Questions Presented—Admission of Evidence.

A bill of exceptions to the ruling of the court on the admissibility of evidence is not sufficient, although it gives the questions asked the witness and his answers thereto, unless it contains sufficient of the preceding evidence to give the appellate court a clear apprehension of the propriety of the ruling.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. &§ 2897-2S99, 2902-2904, 2906, 2908; Dec. Dig. § 690.*]

3. Appeal and Error (§§ 970, 971*)—Trial (§ 62*)—Witnesses (§ 262*)—Conduct of Trial—Rebuttal Testimony.

The trial court has a wide discretion in the matter of recalling witnesses, and its allowance of the introduction of testimony on rebuttal will not be disturbed in the absence of a palpable error.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851, 3852-3857; Dec. Dig.§§ 970, 9(1;* Trial, Cent. Dig. 148-150; Dec. Dig. § 62;* Witnesses, Cent. Dig. §§ 797, 899, 904, 1105; Dec. Dig. § 262.*]

4. Appeal and Error (§ 1067*) — Instructions—Harmless Error.

Where the instructions given fully and fairly submitted all the issues to the jury, and the evidence was such that no other verdict than that for plaintiff could have been properly found, the refusal of defendant's instructions must be considered harmless.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*]

Error to Circuit Court, Clarke County.

Action by A. L. Warthen against E. B. Jacobs. Judgment for plaintiff, and defendant brings error. Affirmed.

Instructions given were as follows:

"(1) The court instructs the jury that, while the burden of proof is upon the plaintiff, Warthen, to show that he sold the three horses to Jacobs, yet the burden of proof is upon Jacobs to establish that the horses came into his possession in some way other than by bargain and sale.

"(2) The court instructs the jury that, if they believe from the evidence that Warthen offered to sell to Jacobs the Pendennis mare, the Black Cock horse, and the Semper Ego horse at the price of $1,050, and that said offer was accepted by Jacobs, and nothing remained to be done by Warthen to complete the contract, then title passed from Warthen to Jacobs as soon as the said offer was accepted.

"(3) The court further instructs the jury, if they believe from the evidence that there was a sale of the three horses by Warthen to Jacobs, then, in considering whether the said horses or any of them were unsound, the jury are confined to the condition in which the said horses were at the time the said sale was consummated and title passed; the court telling the jury that it is immaterial whether the horses or any one of them were injured or in a crippled condition after title passed to Jacobs, provided they were uninjured and sound when title did pass.

"(4) The court instructs the jury that in all sales of personal property the doctrine of 'caveat emptor, ' or let the buyer beware, applies, except when there has been a warranty or deception or some fraud, or a deception upon the part of the seller, misleading the buyer to his injury, and upon which the buyer relied.

"(5) The court instructs the jury that, although they may believe from the evidence that the defendant purchased the horses at an agreed price to be paid for when sold, yet, as a matter of law, the time of payment in such a case would be a reasonable time after the delivery of said horses to the defendant. The court also instructs the jurythat, if the defendant relies upon the representation of the plaintiff which he alleges to be untrue, the burden of the proof is upon the defendant to establish that the plaintiff made the representations, that the same were false, and that the defendant relied upon them, and was injured by reason of their falsity; the court telling the jury that to bear this burden the defendant must do so by preponderance of affirmative testimony.

"(6) The court instructs the jury that, although they may believe from the evidence that the Semper Ego horse is now crippled, and was crippled when he arrived at Jacob's place, yet, if they believe that the said horse was sold to Jacobs, then Warthen cannot be held responsible for any injury which may have occurred after said sale was consummated and title passed; the court telling the jury that this is true even though they should believe from the evidence that Warthen warranted his soundness.

"(7) The court instructs the jury that, if they believe from the evidence that there was a sale by Warthen to Jacobs, and that at the time of the sale the Semper Ego horse was apparently sound, it matters not what the condition of the horse was on the road, or when he arrived at Jacob's place, unless they believe from the evidence that Warthen expressly warranted his soundness, or knew that he was unsound, or had any knowledge of his being unsound; the court telling the jury that the burden of the proof is upon Jacobs to establish such a warranty or knowledge on the part of Warthen by a preponderance of affirmative testimony.

"(8) The court instructs the jury that, if a seller warrants the property sold, and there is a breach of the warranty, the purchaser has the election between two remedies. First, he may rescind the contract, if within a reasonable time he notifies the seller of his intention so to do, and offers to restore the property. In such case the contract is terminated, and the rights of the party revert as if no contract had ever existed between them. The property belongs to the seller, and the purchaser is not liable for the purchase price, and may recover any reasonable expenses to which he may have been exposed. But, in order to entitle the purchaser to this remedy, he must, after the discovery of the breach, act with reasonable promptness in notifying the seller and making offer to restore the property. If he unreasonably delays or does any act in recognition of the contract after knowledge of the breach, he is concluded by the election he has made, and must take the property. Nor is he permitted to rescind the contract in part, enforcing it so far as it is favorable to him, and reject so far as it is unfavorable to him. He must rescind as a whole, or accept as a whole. He has also but one election. Having elected to stand on the contract, he cannot afterwards reject it Secondly, he may ac cept the goods, and abide by the contract, and rely upon his damages for the breach of the warranty, in which case the property is the property of the purchaser; but he is entitled to set off against the purchase price such damages as he may be entitled by reason of the breach of the warranty. The measure of damages in such a case is the difference between the value of the property as warranted and the value of the property as it actually was at the time of the sale.

"(9) If the jury believe from the evidence that there was no sale, but that the property was delivered to the defendant to be sold at an agreed price upon a warranty that the property was sound, and the property was unsalable because the property was not as warranted, then it was the duty of the defendant to notify the plaintiff of the breach of the warranty, and offer to return the property to him, and he can recover no damages until his offer to return has been made to the plaintiff. His damages in such case would be any expense to which he may have been exposed for the keep of the property after he has offered to return the same, less any profit he may have made out of the contract. The jury are instructed that the defendant should be entitled to set off the $25 due by the plaintiff to him, if they believe that plaintiff owes him that sum."

At the request of defendant the court gave the following instruction:

"(1) The court instructs the jury that to constitute a warranty no particular form of expression is required; an apparent intention to warrant is sufficient. It is enough if the words used import an engagement on the part of the vendor that the article is what he represents it to be. Any distinct affirmation of quality made by the vendor at the time of the sale, or during the negotiations that led up to the sale, not as an expression of opinion or belief, but as an assurance to the purchaser of the truth to the fact affirmed, and an inducement to him to make the purchase, is, if accordingly received, and relied on, and acted upon by the purchaser, an express warranty."

Marshall McCormick and F. B. Whiting, both of Berryville, for plaintiff in error.

Downing & Weaver, of Front Royal, for defendant in error.

CARDWELL, J. This action is brought by A. L. Warthen, upon notice under the statute, to recover of the defendant E. B. Jacobs the sum of $1,050, the purchase price of three horses, named Semper Ego, Black Cock, and Pendennis, which were delivered to the defendant at the plaintiff's stables on April 1, 1911. The defendant, at the calling of the case for trial, filed the plea of the general issue in assumpsit and two special pleas, under oath, setting forth his defense (1) that he had never bought the horses, and (2) that he took them to sell for the plaintiff, andhad incurred expenses in the care and keep of them in the sum of $564, for which amount he was entitled to a judgment against the plaintiff, and alleging that the plaintiff had warranted the horses to be sound and high class.

The theory of the plaintiff is (1) that he sold to the defendant the three horses at the agreed price of $1,050, without a warranty, and (2) that, although he did not warrant the horses to be...