Johansmeyer v. Kearney , 37 Misc. 785 ( 1902 )

Freedman, P. J.

The complaint in this action was for money had and received. After the close of the examination of the plaintiff as a witness on his own behalf, the plaintiff’s attorney moved to change the cause of action to breach of contract of warranty and the motion was granted. To this cause of action-the defendants pleaded “ a general denial and that the contract was between the plaintiff and one by the name of Shubbert, and that the defendant was simply the auctioneer and only represented the purchaser and seller.” The trial proceeded and was concluded upon the pleadings as amended. The controversy between the parties arose out of the purchase of a horse made by the plaintiff at an auction sale conducted by the defendants. The plaintiff had frequently attended such sales. He had in his possession at the time of the sale in question, a catalogue which contained a “ Special Notice.” The notice referred to the conditions of sale. Among the conditions were the following: “ The time allowed to test warrantee will expire on Monday next at 9 a. m. unless otherwise stated by the auctioneer at the time of the sale. * * * When a horse is warranted kind and true in all harness, and appears to be broken winded, or refuses to work the purchase money will also be returned to the purchaser.” Preceding the list of horses, etc., catalogued was the following: “All horses are advertised and sold in accordance with descriptions received from their owners.” The lot 147 in question was knocked down to plaintiff who immediately paid a deposit of $20 to the auctioneer’s clerk, who immediately made the proper entries in the sales-book, and delivered a bill to the plaintiff which contained the following written warranty: “Warranted kind and true in all harness and good wind, until Monday morning at 9 o’clock a. m. All claims to meet consideration must be made before warranty runs out.” The horse appeared to be all right at the time of the sale and delivery. After having paid the purchase-price, the plaintiff asked the defendants’ stableman to recommend some one to take the horse to plaintiff’s stable in the borough of The Bronx, and the stableman having done so, the plaintiff employed the man so recommended to take the horse to plaintiff’s stable, and the horse was brought there. This was on a Friday evening. According to plaintiff’s testimony the horse was so stiff the next morning that he could not get him out of the stall and he remained substantially in that condition throughout Sunday, and at about five o’clock on Monday morning the horse left plaintiff’s stable in charge of a man to be taken to defendants’ stable in Thirteenth street. The man first attempted to ride the horse, but after proceeding a short distance he dismounted and led the horse and arrived at the stable of the defendants between ten and eleven o’clock in the morning, after having been five hours on the road. When questioned as to what was the matter with the horse, the man said he dad not know, and simply left the horse at defendants’ stable. When the plaintiff and the defendants subsequently met, the defendants insisted that there was no breach of the warranty, and after a trial the horse did appear to be all right. Under all the circumstances disclosed it cannot be held that there was a waiver of the condition of the warranty that, in case a breach was claimed, the claim should he presented by nine o’clock on Monday morning. But even if it were held that there was a waiver as to the time, the plaintiff failed to show a breach of the warranty. The horse was not warranted sound, but simply kind and trae in all harness, and good wind. The plaintiff never put a harness upon him and never tried his wind. What caused the stiffness was not shown, nor was it shown that it was of a permanent character or liable to recur after proper work. There is no evidence that the horse had ever heen ridden before, nor as to the manner in which he was ridden on his way to plaintiff’s stable. He may have been overheated and allowed to catch cold. So the man who rode him may have dismounted several times on the road for his own purposes and allowed the horse to stand in a cold draught, or the horse may have been watered before he had sufficiently cooled off. There are other possibilities. But from the fact that the horse appeared to be all right before and at the sale and upon a subsequent trial by the auctioneer, the conclusion may fairly be drawn, in the absence of all evidence as to the cause of the stiffness, that the said stiffness was of but a temporary character. But even if it had been shown to constitute unsoundness, it would not have established a breach of the warranty, because soundness was no part of the warranty. In every aspect of the case therefore the plaintiff failed to prove a breach of the warranty, and his complaint was properly dismissed. True, the plaintiff may have a cause of action. He left the horse with the defendants, and there is some evidence to the effect that thereafter it again went into the possession of its original owner. Moreover the defendants at the trial claimed that plaintiff’s money had been paid over to said owner. But upon the whole case sufficient facts do not appear to show with certainty what remedy the plaintiff may successfully pursue. The judgment appealed from expressly states that it is without prejudice to a new action and the plaintiff should be left free to take such action as he may be advised to take upon the facts which he may be able to prove.

Upon the present record, the judgment should be affirmed, with' costs.

Gbeenbaum, J., concurs.