Richardson v. Landreth

Decision Date07 April 1924
Docket NumberNo. 15013.,15013.
Citation260 S.W. 128
PartiesRICHARDSON v. LANDRETH.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Linn County; J. E. Montgomery, Judge.

"Not to be officially published."

Action by R. P. Richardson against Steve Landreth. Judgment for plaintiff; defendant appeals. Reversed.

Lon. R. Owen, of Marceline, and J. D. Allen, of Chillicothe, for appellant.

C. M. Kendrick, of Marceline, for respondent.

BLAND, J.

This is an action arising in the justice court for the breach of a warranty in the sale of a horse. There was a verdict and judgment in favor of plaintiff in the sum of $40, and defendant has appealed.

The facts show that the defendant and one Sights conducted an auction sale in Linn county in the winter of 1920. At this sale plaintiff bid in a bay horse belonging to defendant. No representations of any kind were made as to the quality of the horse until after the sale was over, when defendant, before the horse was delivered, in answer to a question of plaintiff, "Are they all right, are they sound?" (the sale involved two horses) answered, "Yes, except the black horse." This suit arose over the bay horse.

It is claimed by plaintiff that this constituted a warranty in the sale of the horse involved in this suit. It is quite evident that it does not. Unless the statement or representation is made by the seller contemporaneously with and as a part of the contract of sale, it does not constitute a warranty, unless it is supported by a new consideration. 35 Cyc. 1, pp. 363, 366, 371; Moomaw v. Emerson, 80 Mo. App. 318. We do not understand that plaintiff disputes this rule, but claims that, as the horse was not paid for at the time the representation was made, and that thereafter plaintiff gave defendant a check for the purchase price, which was not taken as payment, the title had not passed at the time the representations were made. Ordinarily at an auction sale where the sale is without condition, as here, the title passes to the bidder when the property is knocked down to him. 4 Cyc. 1048; 6 C. J. 835.

"If by the terms of the auction the sale is unconditional, and nothing remains to be done to the property before its delivery, either to separate it from other property or to put it in condition ready for delivery, then as between the parties title to the property passes to the purchaser, even though the right to its possession does not pass until the price is paid or arranged for to the satisfaction of the...

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10 cases
  • Grubbs v. Public Service Co.
    • United States
    • United States State Supreme Court of Missouri
    • 21 Diciembre 1931
    ......Ida L. Dyer. It recites that in September, 1924, she was rooming at 642 Garfield Avenue, Kansas City, with Mrs. Edith B. Richardson, with whom the Grubbs family also roomed; that in the latter part of March, 1925, Mrs. Grubb was sick for about two weeks when she was taken to the ......
  • Grubbs v. Kansas City Public Service Co.
    • United States
    • United States State Supreme Court of Missouri
    • 21 Diciembre 1931
    ......Ida L. Dyer. It recites that in. September, 1924, she was rooming at 642 Garfield Avenue,. Kansas City, with Mrs. Edith B. Richardson, with whom the. Grubbs family also roomed; that in the latter part of March,. 1925, Mrs. Grubb was sick for about two weeks when she was. taken to ......
  • Brandtjen & Kluge v. Hunter
    • United States
    • Court of Appeal of Missouri (US)
    • 14 Diciembre 1940
    ...... submitted the issue of a "new contract" allegedly. made at the time the new parts were installed. Authorities. under Point 5 (b); Richardson v. Landreth (Mo. App.), 260 S.W. 128; Moore v. Miller (Mo. App.), 100 S.W.2d 331. (g) The instruction erroneously. allowed "special damages" ......
  • Feinstein v. Borgmeyer
    • United States
    • United States State Supreme Court of Missouri
    • 24 Agosto 1943
    ...is accepted by the auctioneer, this acceptance being usually signified by the fall of the hammer. 5 Am. Jur. 455, sec. 17; Richardson v. Landredth, 260 S.W. 128; Hall Giesing, 178 Mo.App. 233. (5) A third party, or stranger, having no interest in the mortgaged land about to be sold, and no ......
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