Condon v. Hughes ( 1892 )

Grant, J.

This suit is brought to recover $100 paid by plaintiff’s son, a minor, to the defendants as the purchase price of a colt. The declaration contains a special count and the common counts. The special count is for a breach of warranty. The case was tried before the court without a jury, and judgment rendered for plaintiff.

The material facts as found by the court are as follows: Plaintiff’s son was 15 years old at the time of the purchase, and had earned the money by his own labor, with which he purchased the colt. The colt was sold to the son, May 18, 1891, as three years old, wild, and unbroken. Plaintiff was absent at the time of the purchase, and reached home the latter part of June, when he was informed of the purchase. He handled and dro.ve the colt as if she were his own, kept her until the 27th day of August, 1891, when he tendered her back to defendants, and demanded the money his son had paid. The only difficulty with' the colt was. that she kicked when in harness. Of this the son was informed before the purchase, and the plaintiff was so informed a few days after he returned home. No warranty was made by the defendants.

Under this finding of facts but one question arises, viz., can the plaintiff maintain the suit on the ground that the money paid was the earnings of his son, to which he is legally entitled? It is evident that he would not have repudiated the bargain if the colt had not been addicted to the habit of kicking. He kept her over two months with full knowledge of all the facts and circumstances of the purchase. He only endeavored to repudiate the bargain after becoming satisfied that the defect could not be remedied. He will not be permitted to speculate in this manner upon the contract made by his son. If he desired to repudiate the contract and recover the money, he should have tendered back the colt and demanded the money as soon as possible after obtaining knowledge of the transaction. He maintained silence when he should have spoken, and the law does not now permit him to speak. Farrington v. Smith, 77 Mich. 550; Hall v. Harper, 17 Ill. 82; Swartwout v. Evans, 37 Id. 442; Weaver v. Ogletree, 39 Ga. 586; Burnham v. Holt, 14 N. H. 367.

Judgment reversed, and judgment entered in this Court for the defendants.

The other Justices concurred.