Sherman v. Rockwood

• Decision Date: 23 May 1887
• Citation: 26 Mo.App. 403
• Parties: MORRIS SHERMAN, Respondent, v. C. A. ROCKWOOD, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 403

MORRIS SHERMAN, Respondent, v. C. A. ROCKWOOD, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Vernon Circuit Court, HON. E. E. KIMBALL, Special Judge.

Affirmed.

Statement of case by the court.

This action was instituted in a justice's court, to recover the value of a horse sold by plaintiff to defendant for the sum of one hundred and fifty dollars. Plaintiff recovered judgment, and defendant appealed to the circuit court. When the cause came on for trial in the circuit court, the plaintiff made to the jury an oral statement of what he expected to prove. Thereupon, the defendant stated that he denied any liability, and that his defence would be developed as the trial progressed.

The plaintiff's evidence showed that defendant came to his store and proposed to buy the horse in question; that plaintiff expressed an unwillingness to sell the horse, as it suited him. On defendant's insisting the plaintiff consented to take one hundred and fifty dollars in cash. Thereupon, the defendant stepped to the desk, and drew a check on a bank in Nevada for that sum, and holding it up, so that its face could be seen by a party present, but not by the plaintiff, said: " Bring the horse around in the morning and let me see him, and I will examine him, and if he is what I think he is I will take him." The check was placed in the hands of the third party in the store. Next morning plaintiff took the horse around as agreed, and after looking at him the defendant gave the plaintiff an order on said third party for the check, and plaintiff delivered to defendant the horse. Plaintiff immediately obtained the check, and presented it to the bank for payment. The cashier refused to pay it, on the ground that he had been notified by the defendant not to pay it. The cashier then called plaintiff's attention to the fact that just after the words, " Thornton Banking Company," were written in a very fine hand the words, " " one day after death," thereby making the check payable one day after death. Plaintiff's evidence tended to show that, when the defendant exhibited the check at the store he held his thumb over these words, and that they were not discovered by him until the cashier called his attention to the fact. On demand made of the defendant he refused to pay the purchase money. On the cross-examination of the plaintiff the defendant asked him, if he did not, at the time of the purchase, state that the horse was sound? To this the plaintiff objected, for the reason that the defendant in his statement tendered only the general issue, and had not therein given notice of the defence of breach of warranty. The court thereupon remarked that he understood the defence interposed was only the general issue.

Defendant's attorney then stated that he relied, first, on the fact that the trade was a joke, and, second, if the jury did not so find, he claimed there had been a breach of warranty. The court thereat remarked that the two defences were inconsistent, and that defendant could elect on which defence he would rely, and unless he elected to stand on the breach of warranty he could not allow the proof.

The defendant offered no evidence to support the claim that the trade was a joke; but did offer to show that the horse was sold to him as sound, when, in fact, he was not sound; that he was almost blind in one of his eyes, and that plaintiff knew this fact. The offer was rejected.

Verdict and judgment for plaintiff, from which defendant has appealed.

D. P STRATTON and G. S. HOSS, for the appellant.

I. The court erred in refusing to permit defendant to cross-examine plaintiff as to his representations concerning the soundness of the horse at the time of the trade. The court erred in sustaining the objection to the testimony offered by the defendant, tending to prove that the plaintiff made false and fraudulent representations as to the soundness of the horse at the time of the sale. Hoffman v Parry, 23 Mo.App. 20, and cases therein cited.

II. No pleading was required in this case, and " a general denial" was not pleaded. The court says he construes the expression or statement, " the defendant denies any liability," to be a general denial. Admitting it to be a general denial, it was competent to introduce the testimony offered by defendant under it; for if the sale was effected through false or fraudulent representations as to the animal's soundness, then plaintiff never, at any time, had a cause of action, as the fraud would avoid the contract. The defendant never offered any testimony to support the theory that the trade was a joke, and until he did, the court should not decide as to whether the defences were inconsistent. The defendant was clearly entitled to prove fraud in the sale of the animal and a breach of warranty of its soundness.

GORDON & HOSS, for the respondent.

I. The issues before this court arise out of the action of the circuit court in refusing to permit the defendant to cross-examine plaintiff as to an alleged breach of warranty as to the soundness of the...