Leitner v. Thayer
| Decision Date | 02 October 1916 |
| Docket Number | 850 |
| Citation | 159 P. 1084,24 Wyo. 378 |
| Parties | LEITNER, ET AL., v. THAYER, ET AL |
| Court | Wyoming Supreme Court |
ERROR to District Court, Big Horn County; CARROLL H. PARMELEE Judge.
Action by Frank A. Leitner and others, co-partners doing business under the name and style of Leitner Bros., against William Thayer and another to recover upon notes given in the purchase of a stallion. Judgment for defendants and plaintiffs bring error. The facts are stated in the opinion.
Affirmed.
Thomas M. Hyde, Frank Hunter, and George W. Farr, for plaintiffs in error.
The court erred in refusing plaintiff's offer to prove that counsel for defendants agreed to produce the original bill of sale; whether a bill of sale had been given at the time of the purchase being an important issue in the case, the defense being that oral warranties were made by plaintiff's agent at the time of the sale; the admissions of counsel bind their clients. (4 Cyc. 949, 950.) The court erred in refusing plaintiff's offer to prove the custom and practice adopted by dealers as to sales and warranties of stallions; the court erred in giving instruction No. 1 relating to the authority of plaintiff's agent. (31 Cyc 1353.) The court erred in excluding correspondence passing between the parties, marked Exhibits Nos. 5 and 6. The court erred in overruling and denying defendant's motion for a directed verdict. (Denver Horse Importing Co. v. Schafer et al., 147 P. 367 (Colo.) ; Davis v. Juerson, 5 S.D. 295, 58 N.W. 796; Walters v. Akers, 31 Ky. Law Rep. 259, 101 S.W. 1179; Dunham v. Sahnon, 130 Wis. 164, 109 N.W. 959; Wisdom v. Nicholas Shepard Co., 29 Ky. Law Rep. 1128, 97 S.W. 18; J. L. Case Threshing Mch. Co. v. Hall, 32 Tex. Cir. App. 214, 73 S.W. 835.) The court erred in refusing plaintiff's requested instructions "A" to "H" inclusive. The court erred in giving instructions numbered 2, 3, 4, 8, 10, 11, 17, 18 and 19 and in modifying instructions numbered 20 and 21 in view of the fact that plaintiffs were not permitted to prove custom among dealers in the sale and warranty of stallions.
C. A. Zaring and W. L. Simpson, for defendants in error.
Error assigned upon the alleged promise of counsel to produce the original bill of sale is without merit as the statement would not be admissible to bind client unless he were present or ratified it. (Wigmore on Evidence, Vol. 2, Par. 1063-2; Perkins v. Hawkshaw, 2 Stark 239; 4 Cyc. 949; Jones on Evidence, Page 325.) The bill of sale showing an express agreement having been introduced, there was no error in excluding evidence of the custom obtaining among dealers in the sale and warranty of stallions. The correspondence offered by plaintiffs was immaterial; there was sufficient evidence upon which to submit the cause to the jury and there was no error in denying plaintiff's motion for a directed verdict. It being shown by the evidence that defendants had no knowledge of limitations placed upon agreements of authority there was no error in refusing to give instructions "A" and "E." (31 Cyc. 1327.) No authorities are cited to support assignments of error with reference to the modifications of instructions numbered 20 and 21, and the special interrogatories requested by defendants were material and were properly given; the verdict and judgment should be affirmed.
This is an action on three promissory notes executed by the defendants in error. The petition is in the usual form in three counts. The defendants answered, in the first count of their answer, admitted the execution of the notes, and alleged that the notes were obtained by fraud and misrepresentation and were wholly without consideration, as would fully appear in the affirmative defenses thereinafter set forth. In the second count of their answer they alleged, in substance and so far as material here, that the notes were given as part consideration for the purchase price of a certain stallion. That said stallion was falsely and fraudulently represented by plaintiffs to defendants to be in good health, free from disease and suitable for breeding purposes and would get sixty per cent. of mares bred to him with foal, and was a good foal getter. That said stallion proved to be impotent and of no value for breeding purposes. The plaintiffs replied, admitting that the notes were given as part purchase price of the stallion; denied the other allegations of the answer, and alleged that they made to defendants no warranty or warranties with respect to the breeding qualities or otherwise of said stallion save and except as contained in a certain writing called a bill of sale (a copy of which is set out in full in the reply and will be hereinafter referred to.). That defendants had failed to return the stallion as provided in said writing, but had kept possession of him.
The cause was tried to a jury which returned a general verdict in favor of defendants, and also answers to certain special interrogatories submitted to it. Judgment was rendered in favor of defendants on the verdict, and plaintiffs bring error.
That the stallion was warranted to be a sixty per cent. foal getter is not here in dispute. The claim of defendants being that the warranty was verbal and made before or at the time the notes were executed and delivered, and was to the effect that if with good care the horse did not prove to be a sixty per cent. foal getter the defendants could return him and receive another horse; and they deny having received any written warranty. The defendants claimed that the only warranty their agent who made the sale was authorized to give was a written warranty, and that a bill of sale, a purported copy of which was admitted in evidence, and which they claimed was delivered to defendants, was the only warranty given. Their contention is that by its terms if the horse did not prove as warranted as a foal getter the only remedy the defendants had was to return the horse at the time and place therein stated and receive another horse. The paper admitted in evidence is as follows:
To continue reading
Request your trial