Roberts v. Applegate

• Decision Date: 30 October 1894
• Parties: ROBERTS v. APPLEGATE.
• Court: Illinois Supreme Court

153 Ill. 210

38 N.E. 676

ROBERTS

v.APPLEGATE.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Error to appellate court, Third district.

Bill by James T. Applegate against Stephen E. Roberts to foreclose a mortgage. Complainant obtained a decree, which was affirmed by the appellate court. 48 Ill. App. 176. Defendant brings error. Affirmed.

Bailey & Holly, O'Harra, Scofield & Hartzell, and Patton, Hamilton & Patton, for plaintiff in error.

Neece & Son, for defendant in error.

Defendant in error brought his bill of complaint in the Hancock circuit court, December 5, 1890, to foreclose a mortgage given by plaintiff in error, April 5, 1883, to secure two promissory notes of the same date, for $750 each, given by the latter to the former, and payable, one in one year, and the other in two years, with interest at 6 per cent. Roberts set up in his answer that the notes were given for a stallion purchased by him of Applegate for the price of $1,500, and that, as a part of the contract of purchase, Applegate represented to and contracted with Roberts that the stallion was a pure-bred, registered, english Shire horse, recorded and registered under the name of ‘Young Wonder, No. 2,957,’ in volume 4 of English Cart-Horse Stud Book, and was an ordinary sure foal getter, and a good, sure horse for breeding purposes, and perfectly sound in body and limb; that he (Roberts) bought the stallion for breeding purposes, and did not propose to buy any other kind than a fullblooded, recorded, English Shire stallion; and that Applegate well knew that fact; that the warranty was broken, and by reason thereof the value of the horse was much lessened, and he was worth not to exceed $100. On coming in of the answer, complainant amended his bill, setting up the claim of warranty, and denying it, and alleging that, if such warranty was made, it was not in writing, and was made more than five years before suit, and so barred by the statute of limitations, which statute complainant insisted on. Amended answer was filed, alleging that the warranty was in writing, and signed by the complainant. On replication being filed, hearing was had, and the circuit court rendered its decree for the complainant for the full amount due on the notes, and Roberts took the cause on error to the appellate court for the Third district, where the decree was affirmed, and he then sued out this writ of error for the reversal of the decrees of the appellate and circuit courts.

CARTER, J. (after stating the facts).

The only question involved in this case is whether or not Applegate warranted that the stallion for which the notes were given was a purebred, English Shire horse, registered as and entitled to the name and number of ‘Young Wonder, No. 2,957,’ and was an ordinary foal getter. Roberts testified, in substance: That he went to Applegate, who had a number of imported horses, and told him he wanted an imported, straight-bred, registered horse. That Applegate showed him the horse in question, and represented him as a highly bred horse of his class. That Applegate said he had imported that horse, and he was a straight-bred, registered horse. That after the trade was made, but on the same occasion, he (Roberts) asked Applegate for the pedigree, and Applegate delivered him a catalogue marked, ‘Catalogue of English Cart and Shire Horses and Mares, * * * Imported by James T. Applegate, Macomb, McDonough County, Ill.,’ containing the name of the horse in question as ‘Young Wonder.’ That he asked Applegate about the horse being a sure foal getter, and Applegate replied that there was no doubt about that; that the catalogue contained all that was necessary for him to say on that subject as well as the other; that the horse would come out in volume 4 of the English Cart-Horse Stud Book. He further testified that he did not see the catalogue until the bargain was made, when he called on Applegate for the pedigree, but that he read over the catalogue before executing and delivering the notes and mortgage. It was proved on behalf of Roberts that two-thirds of the value of such a horse consisted in his being registered; that, if not registered, he would not have been worth more than $500, and, if not an ordinarily sure foal getter, much less. Applegate testified that Roberts asked him, at the time he purchased the horse, if he would warrant the horse, and he replied that he would not, for the reason that the animal was a colt, and had never been used as a stock horse, and that Roberts bought him without any warranty; that, before the trade, Roberts asked him about the pedigree of the horse, and he...