W.T. Turner & Son v. Halsted

• Decision Date: 02 December 1930
• Citation: 236 Ky. 322,33 S.W.2d 17
• Parties: W. T. TURNER & SON v. HALSTED.
• Court: Kentucky Court of Appeals

33 S.W.2d 17

236 Ky. 322

W. T. TURNER & SON v. HALSTED.

Court of Appeals of Kentucky

December 2, 1930

Appeal from Circuit Court, Woodford County.

Action by Charles N. Halsted against W. T. Turner & Son. Judgment for plaintiff, and defendants appeal.

Affirmed.

W. D Jesse and Field McLeod, both of Versailles, for appellants.

Frank Ginocchio, of Lexington, and H. A. Schoberth, of Versailles for appellee.

WILLIS J.

Charles N. Halsted instituted an action against W. T. Turner & Son to recover $1,500 for the breach of a warranty of a four year old black mare which plaintiff had purchased from the defendants. The defense interposed consisted of a denial that any warranty was made, coupled with a counterclaim for the cost of keeping the mare. The plaintiff recovered a verdict and the defendants have prosecuted an appeal. The sole question urged is that the court should have sustained a motion for a peremptory instruction in favor of the defendants upon the ground that a fatal variance developed between the plaintiff's pleading and the proof produced in support thereof.

The allegation was that the defendants had warranted the mare to be of sound wind, when in truth she was of unsound wind. It was further alleged that the mare had been returned to the defendants because of the defect and accepted by them. In an amended answer and counterclaim the defendants alleged that the mare was suffering from distemper and was not ready for sale, but that plaintiff bought her without warranty and with a full knowledge of her condition. It was further alleged that her condition had been aggravated by change of climate and premature use, and that defendants took her back as a friendly act to endeavor to effect a cure, which had been fully accomplished. A reply was filed traversing the allegations of the answer, and the trial was had upon all the issues thus presented.

The testimony for the plaintiff tended to sustain his claim whilst that for the defendants conformed to their contention.

The argument for appellants is that a warranty of the animal's wind, as pleaded, was not established by proof of an agreement to the effect that if she failed to recover fully from the distemper with which she was afflicted the contract might be rescinded. But the statement so circumscribed does not give full effect to the plaintiff's testimony. He said to Turner that the mare might have bad wind after the distemper disappeared, and if such proved to be the fact, he would return her and Turner should return to him the full consideration paid. Turner assented to the condition, stating that he would not give $5 to any man to make her wind right. The check then, with that understanding, was delivered to him. The trial revolved around the central idea of defective wind resulting from the distemper, and the roaring referred to in the evidence was not so much a distinct disease as evidence of the primary unsound condition. The testimony tended to show that the mare was of unsound wind, and for that reason alone she was returned to defendants. They took her back and had her treated, and it was for the jury to determine from the evidence the real character of the conduct of the parties and the true version of the entire transaction. The evidence was in sharp conflict, but the plaintiff's testimony concerning the transaction tended to prove a warranty of sound wind, and a breach thereof. McClintock v. Emick Stoner & Co., 87 Ky. 160, 7 S.W. 903; Stanley v. Day, 185...