Lynch v. Willford

• Decision Date: 25 May 1894
• Citation: 57 Minn. 377,59 N.W. 311
• Parties: LYNCH v. WILLFORD ET AL.
• Court: Minnesota Supreme Court

57 Minn. 377

59 N.W. 311

LYNCH

v.WILLFORD ET AL.

Supreme Court of Minnesota.

May 25, 1894.

(Syllabus by the Court.)

A sale of personal property on condition that the vendee may return it, in a certain contingency, becomes absolute, if the vendee, in the mean time, disables himself from performing the condition, as by selling or mortgaging the property.

Appeal from district court, Fillmore county; John Whytock, Judge.

Action by Lawrence Lynch against William Willford, executor, and Mrs. John Ward, executrix, of the estate of John Ward, deceased. Verdict for plaintiff. From an order refusing a new trial, defendants appeal. Reversed.

Wells & Hopp, for appellants.

Harries & Duxbury, for respondent.

MITCHELL, J.

The plaintiff contends that his recovery in the court below can be sustained on the ground that this was an action for damages for breach of warranty. It is undoubtedly true that where there is a warranty a right of action for its breach may exist, although the vendor had expressly agreed to take back the property in case it did not correspond with the warranty, the right of the buyer to return being merely a cumulative remedy. But the trouble with plaintiff's position is that he has not alleged any warranty. The allegations of the complaint are merely that he bought the stallion “upon the express condition that, if said stallion did not prove a reasonable foal getter upon at least two seasons' trial, that he was to have the privilege of returning said stallion, and to receive in lieu thereof another stallion, of equal value, upon the same conditions.” The fact that plaintiff subsequently, in his pleading, calls this a “warranty,” does not make it so. The complaint then proceeds to allege that the stallion did not, on such trial, prove to be a good foal getter; that plaintiff offered to return it; that defendants refused and still refuse to accept it, although plaintiff is ready and willing to do so. Aside from the statement of certain facts tending to excuse a delay in offering to return, this is all, of substance, that there is in the complaint. This was a sale on a condition subsequent, to wit, that, if the animal did not prove a good foal getter, plaintiff might, at his election, return it, and receive another stallion in place of it. Being a sale on condition subsequent, the property vested presently in the vendee, defeasible only on the performance of the condition. If the plaintiff in the mean time disabled himself from...