Van Allen v. Allen , 1 Hilt. 524 ( 1858 )

HiltoN, J.

— On April 9tb, 1857, plaintiff sold and delivered a borse to tbe defendants for $130, and represented the animal to be sound and kind. Upon tbe delivery, $70 was paid in cash, and $60 in tbe due bill on wbicli this action is brought. The defendants were to try tbe horse, upon the agreement that, if they did not like him, tbe plaintiff would take him back and return tbe money and due bill. The horse was used Of ibe defendants in their ice business. After the first clay’s use, and with a full knowledge by them of the existence of a crack in bis hoof, they informed the plaintiff that the horse suited them.

They never returned, or offered to return, tbe borse, but upon being sued on tbe due bill set up as a defence—

1st. That tbe due bill was not to become payable until a reasonable time after they should become satisfied with the borse.

. 2d. That the borse was warranted sound and kind, whereas be was baulky, and, by reason of the cracked hoof, was unsound, constituting a breach of tbe alleged warranty, whereby tbe defendants sustained damage, &c.

As to the first ground of defence, it is sufficient to say, that tbe due bill, on its face, purported to be and was clue and payable immediately (Cornell v. Moulton, 3 Den. 12), and parol evidence was inadmissible to show that it was intended to be payable at a different time. Fitzhugh v. Runyon, 8 John. 375 ; Thompson v. Ketcham, ibid. 190.

As to the second, admitting that there was a warranty, tbe defendants have shown no damage. They purchased the horse for . $130, and the evidence is that he is now worth that sum. There is no testimony whatever showing what would be his value without the crack in his hoof.

But there was ■ no warranty. The horse was sold upon the agreement that the defendants were to use him, and determine whether they would keep or return him. They did use him, expressed themselves satisfied, never offered to return him, and should now pay the price they agreed to.

Judgment affirmed.