Love v. Ross

• Decision Date: 16 October 1893
• Parties: LOVE ET AL. v. ROSS ET AL.
• Court: Iowa Supreme Court

89 Iowa 400

56 N.W. 528

LOVE ET AL.

v.ROSS ET AL.

Supreme Court of Iowa.

Oct. 16, 1893.

Appeal from district court, Dallas county: J. H. Applegate, Judge.

Action upon two promissory notes aggregating $800. Defendant answered, admitting the execution of the notes, and alleging by way of counterclaim the following: That about March 21, 1888, they purchased from the plaintiff, for breeding purposes, a stallion, at the agreed price of $1,500. That plaintiffs warranted said horse in writing, as per copy attached, “to be a reasonably sure foal getter under favorable circumstances,” and that said horse was not as warranted. They alleged that the horse was of no value; that, if it had been as warranted, he would have been of the value of $1,500, which amount they ask to recover. They also alleged that they kept the horse during the season of 1888 at an expense of $250, which was lost to them by reason of his condition, and which they ask to recover. They also ask to recover $600 as the difference in what they would have realized from the services of the horse during the season of 1888 had he been as warranted and the amount actually realized from his services. Plaintiff replied admitting the sale of the horse as alleged, and denying every other allegation in the counterclaim. Verdict and judgment for plaintiffs for $148.78. Both parties appeal. Defendants, having first perfected their appeal, are designated as appellants.Shortley & Harpel, for appellants.

White & Clarke, for appellees.

GIVEN, J.

1. We first consider the question presented by plaintiffs on their appeal. The written contract set out in defendant's answer contains the following: “Albia, Iowa, 3-21, 1888. In having this day sold to W. F. Graham, G. H. Ross, and John Crawford the English Shire, Yorkshire Lad stallion for $1,500, it is therefore agreed that said stallion is warranted to be a reasonably sure foal getter under favorable circumstances, and in default thereof said W. F. Graham, C. H. Ross, and John Crawford can return said stallion to us here at Albia, in as good condition as he is now in, and we will exchange said returned stallion for another, giving or receiving the actual difference of the value of the two animals. In case of a disagreement as to the actual difference between the two horses to be exchanged it shall be left to three disinterested parties, each party interested choosing one party and the two so chosen shall select the other, and the decision of the three shall be final.” Defendants state in their answer that before sufficient time had elapsed to reveal the fact that the horse was not as warranted he died, thereby rendering it idle and unnecessary to return the said horse. The plaintiffs contend that the defendants were not entitled to recover damages upon the third count of their counterclaim, for the reason that the horse, on the discovery of the alleged breach of warranty, was not returned to the plaintiffs as provided in said contract. It is contended that it is competent for the parties to provide by contract that a particular course shall be pursued in case of a breach of the contract of warranty, and that, where parties that thus agreed upon the course that shall be taken, and the consequences that shall follow that course, and these consequences will be enforced to the exclusion of the rights which the parties might have in case no course was agreed upon. In King v. Towsley, 64 Iowa, 78, 19 N. W. Rep. 859, it is said: “It is well settled in this state that when the parties have not stipulated as to the course which shall be taken in case of the failure of the warranty, the vendee has his election either to sue on the warranty or to rescind the contract by returning the property and bringing his action for...