Willig v. Brethauer

VAN DYKE, P. J.

This is an appeal from the judgment in an action to recover damages for breach of an implied warranty that a bull purchased by respondent from appellant was fit for the particular purpose for which it was purchased, that is, for service as a herd sire. The record is clear that respondent purchased the 21 months’ old bull for this purpose and that appellant, through his managing agent, was so informed. Appellant was engaged in the business of raising and selling purebred Hereford cattle, including as a part of that business the furnishing and selling of herd sires. Respondent took the bull and after a short period of isolation attempted to use him as a herd sire. Over the period of a month or two more than thirty heifers were brought to the bull. It was apparent from the outset that he was indifferent to the point where a normal amount of service could not be obtained from him and respondent informed appellant’s ranch manager that the bull was apparently not fit as a breeder. The bull was returned to the seller’s ranch and there efforts were made by the manager to bring the bull into condition to breed. Veterinaries, on examining the animal, found certain infections of the genital parts which they thought was the reason why the animal refused to serve. They also gave it as their opinion that the

[652]

condition originated in traumatic injury when the animal had attempted service. On this point, however, the inferences that could be drawn from the testimony concerning the whole history of the effort to use the bull for breeding purposes were such that the trial court was justified in drawing the conclusion that the animal was temperamentally and physiologically unfit for the purpose of serving as a herd sire. Thus it was shown that months before the infected condition was discovered, and long before, according to the veterinaries, the condition had probably originated, the animal had failed to perform any considerable amount of service so as to qualify for the purpose for which he had been purchased. When the handling by the ranch manager did not improve the animal, respondent refused' to receive it back, demanded the return of the purchase price of $1,200, and upon appellant’s refusal to repay, brought suit.

Without specifically referring to the code section on implied warranties of quality (see Civ. Code, § 1735) the respondent pleaded in general that he had purchased the animal for the express and only purpose of serving as a herd sire; that at the sale respondent had warranted the animal to be fit for such purpose and that this warranty had been breached. Appellant now contends, first, that there was no warranty of fitness, and, second, that if such warranty existed there was no breach- thereof.