Marcum v. Potter

• Citation: 255 S.W. 47,148 Tenn. 251
• Parties: MARCUM v. POTTER ET AL.
• Decision Date: 16 July 1923
• Court: Tennessee Supreme Court

255 S.W. 47

148 Tenn. 251

MARCUM v. POTTER ET AL.

Supreme Court of Tennessee.

July 16, 1923

Appeal from Chancery Court, Scott County; John Jennings, Jr. Chancellor.

Action by R. S. Marcum against R. L. Potter and Kirby & Co. in which defendant Potter filed a cross-bill against his codefendant. From a decree of the Court of Civil Appeals, modifying the chancellor's decree for cross-complainant and remanding the cause, cross-complainant appeals. Chancellor's decree affirmed, and decree of Court of Civil Appeals modified accordingly.

L. D SMITH, Special Judge.

R. L Potter, who is complainant in the cross-bill filed in this cause, on September 25, 1920, purchased from Kirby & Co. two horses at a sale conducted by them under an advertisement at Oneida, Tenn. In payment for the horses Potter issued his check on the bank at Huntsville for $281 and took possession of the horses. The complainant, R. S. Marcum, for the accommodation of Potter, indorsed this check. It was presented by Kirby & Co. to the bank at Oneida and by that bank paid. The horses which Potter purchased were warranted to be halter wise or broken. It turned out that the representation made with respect to these horses was untrue. Potter made an effort to convey the horses to his home by means of haltering them. They were so wild that one of them injured itself to such extent as that it had to be killed, and the other one fell and broke its neck.

Potter, conceiving that the warranty had been breached and that he was not liable to pay for the horses, notified the bank at Huntsville on which the check was drawn not to pay the check. Marcum then brought the original bill in this case, upon the theory that he was liable as an indorser on the check against Potter, the drawer of the check and against Kirby & Co., who had obtained the money thereon.

Potter in his answer admitted his liability to Marcum, but brought a cross-bill against Kirby & Co., setting up that the quality of the horses which he bought had been misrepresented, and that they had been warranted as halter broke or halter wise, and that this warranty was untrue and breached, and he sought to recover of Kirby & Co. the amount which he paid for the stock.

The chancellor and the Court of Civil Appeals very correctly reached the conclusion that the proof showed overwhelmingly that Kirby & Co. had warranted these horses and represented them as being halter broke, when, in truth and fact, they were wild Western horses, that had never had a halter on them at all. The chancellor gave a decree in Potter's favor for the full amount paid for the horses. His decree was modified on appeal to the Court of Civil Appeals, that court holding that the measure of damages was the difference in the value of the horses had they been halter broken and their value as they were unhalter broken. As the proof did not show the amount of the...