Coats v. Hord

RICHARDS, J.

This is an action brought for the rescission of a contract for the exchange of a stallion for a jack mule, the plaintiff averring that the latter animal proved worthless for the purpose for which he acquired it. The cause was tried upon the issues presented by the pleadings.

[116]

The court found that the exchange had been brought about through certain statements made by the defendant which amounted to an express warranty of the foal-producing qualities of the mule, and which had proven untrue. It further found that the stallion was of the value of five hundred dollars, and the court thereupon rendered a judgment in plaintiff’s favor for the sum of five hundred dollars, but made no provision in such judgment for the return of the-defendant’s mule.

The respondent argues in support of such judgment that the finding of the court to the effect that the defendant’s mule “was useless and worthless for any purpose and of no value” made it unnecessary to order, its return; but we think that this finding must be read in connection with the pleadings and proofs in the case, and, so read, must be limited to the valuelessness of the animal for the uses which induced the exchange.

The appellant contends that the findings of the court with reference to the express warranty of the mule by the defendant are not supported by the evidence in the case; but in this we think he is in error, and that there is sufficient evidence in the record to sustain the findings of the court in that regard. It is not necessary, in order to create an express warranty of an article of personal property, that the word “warrant” should be employed, or that any particular or formal words of warranty should be used. Any affirmation made at-the time of the sale or exchange as to the quality or condition of the thing sold will be treated as a warranty if it was so intended, and if the other party acquired the property on the faith of such affirmation.

(McLennan

v.

Ohmen,

75 Cal. 558, [17 Pac. 687];

Luitweiler etc. Co.