Woody v. Bennett

Hayne, C. The defendants sold and delivered to the plaintiffs a stallion called “ Lord Roxbury,” for the sum of three thousand dollars, and gave to them the following contract:—•

“ Tulare, Cal., Feb. 7,1887.

• “ This is to certify that we, E. Bennett & Son, have this day sold Lord Roxbury (1) to J. H. Woody, James Twaddle, I. N. Wright, and Irwin Brothers, and we guarantee that the two small thicknesses on the hocks shall go off if said parties use proper applications and rubbing; and in the case said bunches do not disappea?*, we will exchange with said parties for any horse of the same price we may have. E. Bennett & Son.”

The plaintiffs gave evidence tending to show that they used the applications recommended by the defendants, but that the bunches were hereditary and irremovable. On these points the evidence is conflicting. But there is no dispute about the fact that the bunches did not disappear. And after a time the plaintiffs requested that an exchange be made for another horse, as provided by the contract. The defendants at first expressed a willingness to make the exchange, and the plaintiffs thereupon selected a horse called “ Lord Roxbury, Second,” then in Kansas. But after some correspondence on the subject, the defendants annexed a condition to the right of exchange, which will be considered below. The plaintiffs thereupon brought the present action. The jury found a verdict in their favor for fifteen hundred dollars, and the defendants appealed.

1. There was evidence tending to show that the defendants told the plaintiffs “to use on these bunches [243]any ordinary simple remedies that is usually used for that purpose,” and that the plaintiffs used remedies which were ordinarily used for such purpose, and after-wards employed a veterinary. There was evidence contradicting the foregoing. But at this stage of the case the evidence in support of the verdict must be presumed to be true, and if true, it was sufficient. It must be taken to be the fact, therefore, that the plaintiffs used proper treatment.

2. It is argued that in their letter announcing their selection of another horse (then in Kansas), the plaintiffs made it a condition that he “should arrive all right” at Tulare, and that they had no right to impose such a condition. It might, perhaps, be suggested in this connection that the defendants' senior partner admitted on the stand that it was his understanding that the exchange should be made at Tulare. But it is not necessary to express an opinion upon the merit of the above contention, for the reason that after some correspondence the defendants refused to consent to any exchange except upon a condition which was entirely unwarranted. In a letter to the attorney in whose hands the plaintiffs had placed their claim, the defendants’ senior partner says: “ We are ready and willing to change, but those parties must take the imported English coach-mare that we imported expressly for them, on their order, at two thousand dollars. That was the price I told them she would cost them delivered at Tulare, and they ordered us to bring her at that price. We are ready and willing to live up to our contract on the horse, and they must do the same on the mare; or if they do not want to take the mare, they must relieve us from the contract to exchange the horse.” And in his final letter on the subject he says: “We will most willingly exchange, but remember we will send the mare with the horse.” Now, even if it were assumed that the defendants could make the performance by plaintiffs of a separate and distinct