Hutchings v. Cole , 1891 Ill. App. LEXIS 261 ( 1891 )

Lacey, P. J.

This suit is brought for the purchase price of an English mastiff bitch called “ Creusa,” sold by appellant in February, 1887, for £35 sterling, to wit, $169.75. Hutchings resided in Exeter, England, and apjtellee, Cole, in Peoria, Ill. They never saw each other. The transaction was entirely by correspondence. There were only four witnesses testifying to the material facts in the case, each by deposition. Appellant and Shepherd in England, and Cole and Bunn in Peoria. The case was tried by jury, which rendered a verdict in favor of appellee. The defense relied upon was an implied warranty of the bitch to the effect that she, having been bought for breeding purposes, and recommended as a good breeder, was totally worthless for such purpose; was too old and weak and in the last stages of her life.

This was the issue before the jury under instructions of which there is no serious complaint. The appellee wrote to appellant for the purpose of buying a mastiff puppy dog about thr.ee months old, to be of fawn color with black markings, of the weight, when grown, of 200 or 215 pounds, perfect in bone and muscle, legs to be straight—in fact to be perfect in every respect. The appellant answered him and recommended to him to buy a bitch, sending him two photographs, one of a bitch called “ Digit,” and the other one the one in question. For the one in question he wanted £35, served in England, giving a very glowing account of her, saying, however, that the appellee would need a foster-bitch, for “ Creusa’s ” teats were too loose for young puppies. This was the only defect that he admitted in her. After the exchange of a letter or two, appellee decided to purchase “ Creusa ” at £35, served in England. Appellant described her as perfect in her disposition and very game and good tempered, and if quietly and kindly treated a rare companion; not quarrelsome with other dogs, and of confiding disposition; that she was very good in her hocks, and considering all that she had gone through with, very active. He gave her age at eight or nine years. The bitch was shipped to appellee, was not paid for before she arrived, and then the appellee refused to pay for her. It was simply a question before the jury as to whether the defense was made out. On the part of the appellee the evidence tended to show that “ Creusa” had no value whatever, unless she was of value for breeding purposes, and this was the purpose for which she was sold to appellee. It appears that when she arrived she was not what appellee expected. The witness Bunn testified that she was old; that her health was broken down by age; that she was very weak; hobbled around; was thin; nothing to her but skin and bone—like an old feeble man would be at very old age; that she had scarcely any teeth, and moved about very slowly; her head was gray with age; not strong enough to give birth to pups; slipped them and they died. That she died of old age soon after. It appears that she had pups soon after she arrived and they all died within twenty-four hours after their birth, some dying at birth, and that “ Creusa ” was worthless unless she would raise pups. It appears that she was bred the second time, and tiie pups were prematurely born when the mother died. "We think there was an implied warranty that the animal sold was good for breeding purposes, and we think the evidence justified the jui'y in its verdict, and that there was sufficient evidence to show that the animal was utterly worthless for that purpose, and that outside of that she was of no value. The judgment is therefore affirmed.

Judgment affirmed,,