Sharp v. Sturgeon ( 1898 )

Biggs, J. —

This is the second appeal in this case (66 Mo. App. 191). In the former, opinion the subject-matter of the controversy is fully stated. In order to properly understand the various assignments, it will be necessary for us to make a full statement of the facts as presented at the trial of the case. On the twenty-eighth of February, 1889, the defendant Sturgeon purchased from plaintiffs, through Dillon Brothers, a Perdieron stallion named Peco. The parties signed a written contract of sale. In describing the horse the contract contained the following: “Dillon Register, 210, N. F. D. H. 1430; P. S. B. A. 1615; P. S. B. F. -.” It is conceded that the words “Dillon Register” refer to a private register of French draft horses which was kept by Dillon Brothers, who were importers of such horses; that the capital.letters N. F. D. H. stand for National Register French Draft Horses; that the letters P. S. B. A. stand for Perdieron Stud Book of America; that the letters P. S. B. F. stand for Perdieron Stud Book of France, and that the number opposite each was intended to represent the number under which Peco was registered in the respective books or registers. The purchase price of the horse was $1,100, for which Sturgeon executed two promissory notes, one for $600 and the other for $500. The defendant Renner signed the notes as surety. The note for $600 was paid. Sturgeon refused to pay the other, upon the ground that in making the sale the plaintiffs, through their agents, Dillon Brothers, warranted that the horse was registered in the Perdieron Stud Book of America and in the Perdieron Stud Book of France, whereas he was not registered or entitled to be registered in either of them. Thereupon the plaintiffs instituted this suit on the note for $500. Sturgeon set forth in his answer the contract, pleaded the warranty and its breaches, and averred that the horse was worth the amount he'agreed to pay for him, if he had been registered as represented, and that without registration in the French and American books he was only worth $200. He asked judgment by way of counterclaim for the difference between the actual value of the horse and the amount which he had already paid. The plaintiffs replied that the portions of the contract referred to were matters of description merely, and were not intended as warranties.

On the former appeal we ruled that oral evidence of what was said at the time the horse was purchased and of the custom of the trade (if there was such a custom) was admissible for the purpose of showing the meaning of the recitals in the contract. On a retrial evidence as to the conversations between Sturgeon and Dillon Brothers, and the representations made by the latter as to the registration of the horse, were admitted in evidence. The testimony of Sturgeon tended to prove that Dillon Brothers represented and warranted that the horse was registered in all of the books mentioned in the contract, whereas he was not registered in the Perdieron Stud Book of France; that he was not properly registered in the Perdieron Stud Book of America, nor was he entitled to registration therein, and that his name only appeared in an appendix to the Perdieron Stud Book of America, which fact was of no consequence and added nothing to the value of the animal. His evidence also tended to prove that without such registration the horse would have to be handled as a grade horse and would probably be worth $200 or $300. The defendants introduced no evidence of what the horse would have been worth if not registered in the French book only. The theory of the defense at the trial seems to have been that the animal was not registered nor entitled to registration in either book, and in the examination of witnesses on the question of value their attention was directed solely to the value of the horse if not registered at all. * * * Sturgeon also read in evidence the rules of the.American Perdieron Horse Breeders Association entitling an animal to registration in the Perdieron Stud Book of America. The rules were adopted in 1888, and eligibility to entry was based upon one or more of the following rules, to wit: First. “Any stallion or mare previously recorded in the Percheron Stud Book of France. The original certificate of registration must accompany the application in all cases under this’rule.” Second. “Any stallion or mare whose sire and dam are recorded in the Percheron Stud Book of America, the application to be accompanied by the affidavit of the breeder.” Third. “Stallions or mares, the produce of five top crosses of sires, recorded in the Percheron Stud Book of America, etc.”

After the adoption of these rules a book which was designated by the Association as Volume IV of the Percheron Stud Book of America, was published in 1888. This is the book referred to in the bill of sale of the horse.

The evidence offered by the plaintiffs tended to prove these facts: In making the sales the recitals in the contract were intended as matters of description and not of warranty, and that as a matter of fact they made no representation that the horse was registered in the Percheron Stud Book of France. It was conceded that the horse was not registered in the Percheron Stud Book of France, and he could not have been for the reason that there was no such book in existence at the time Peco was imported from France. The horse was imported by Dillon Brothers in 1881, and the Percheron Stud Book of France was not started until 1883.

The present American Percheron Horse Breeders Association was first established in Chicago in 1874, under the name of the Pereheron-Norman Horse Breeders of America. The association published its first book in 1878, and entitled it “Vol. I PereheronNorman Stud Book.” Later on a second volume was published under the same title. In 1$84 a third volume was published and it was,designated as “Vol. Ill National Register of Norman Horses.” Under the rules in force when these volumes were published any draft horse imported from France was entitled to registration, whether the animal had a pedigi’ee or not.

Previous to 1884 (when the French Association was established) no attention was paid to the pedigree of horses imported from France-. Peco was registered in 1884 in the second volume under the number 1615. He was registered without pedigree, and was entitled to registration by reason of his importation. In 1888 the American Association published volume IV and entitled it “Perdieron Stud Book of America.” The names of all horses which were registered in the earlier volumes and those which were registered after the publication of volume III were carried into volume IV.

In one part of the volume the names of all horses having pedigrees were entered, and in another part which-was designated as “the appendix,” the names and numbers of horses having no pedigree were entered. As Peco had no pedigree his name and number were placed in the appendix.

The names of over one half of the horses in the book are found in the appendix. The only reason for the separation of the two classes of horses was to get the book into as small a compass as possible. In the registration of horses having pedigrees probably five or six registrations would cover a page of the book, whereas the- names of thirty or forty horses without pedigrees could be registered on a single page.

The plaintiff also introduced evidence tending to prove that pedigrees of, the horses that were first imported were not obtainable; that a pedigree added nothing to their value, and the fact that the names of such horses appeared in the appendix in volume IV did not detract from the value of the horses, and did not affect the validity of their registration.

verdict. The jury returned a verdict in favor of the defendants on the note and against them on the counterclaim, and judgment was entered in accordance with the verdict. The plaintiffs have appealed and complain of the admission of incompetent and irrelevant testimony and of the action of the court as to the instructions.

The first assignment of error is that the court committed error in permitting Sturgeon to testify that Dillon Brothers promised to send him the certificates of the registration of the horse in the various books. In so far as this evidence had a tendency to enlarge the obligations of the plaintiffs under the contract it was inadmissible, and at the instance of the plaintiffs the court so instructed the jury. But the testimony was admissible as showing the importance attached to the alleged registrations of the animal, which fact probably had some tendency to prove that the recitals in the contract as to the registrations were intended as warranties. This assignment will therefore be overruled.

On the measure of damages the court at the instance of the plaintiffs gave the following instruction:

instructions, “If the jury believe from the evidence that the plaintiff contracted with the defendant, J. W. Sturgeon, that the horse. Peco was registered in the Percheron Stud Book of America and also the Percheron Stud Book of Prance, and further believe that plaintiffs’ representation that said animal was registered in both of said books, was false; yet if the jury believe that the horse Peco was actually registered in the Percheron Stud Book of America as number 1615 under the registration rule of the association in force at the date of Peco’s registration, but further believe that said animal was not registered in the French book then the jury are instructed that although they may believe that plaintiffs falsely represented said horse to be registered in the Percheron Stud Book of France, nevertheless there is no evidence in the case showing or tending to show the amount of defendant’s damage by reason of the fact that said horse was not registered in the Percheron Stud Book of France, in such case the defendants will be entitled to nominal damages only, and the verdict will be for the plaintiffs for the full amount of the note sued upon with interest.”

On the same subject and at the instance of the defendants the court gave the following instruction:

“The court instructs the jury that if you believe from the evidence in the case that defendants by their agents Dillon Brothers represented to defendant Sturgeon at the time he bought said horse, that said horse was registered in the Percheron Stud Book of America and in the Percheron Stud Book of France, and that said Sturgeon relying upon said representations bought said horse, and that said representations or any part thereof is false, then the plaintiff’s are liable for breach of contract and must answer to defendant Sturgeon in this action for damages; and the measure of damages is the difference between the said horse as represented and as he was without such registration.”

The complaint that these instructions are radically inconsistent is well taken. It was conceded by the plaintiff’s that Peco had not been registered in the Percheron Stud Book of France, and that he was not entitled to registration therein but as above stated the defendants introduced no evidence that this of itself detracted anything from the value of the horse. Therefore the plaintiffs’ instruction properly declared that, even though the plaintiffs warranted that the horse was registered in the Pereheron Stud Book of France, Sturgeon was entitled to only nominal damages, provided the animal was properly registered in the Perdieron Stud Book of America.

After reciting the alleged warranties or representations that the horse was registered in the American and French books, the jury is told in the defendants’ instruction that if plaintiffs made the representations and “said representations or my part thereof are false, “then the measure of plaintiffs’ damage was the difference between the said horse as represented and as he was without such registration. It is obvious that these instructions declare different doctrines.. Under the one the defendant is only entitled to nominal damages, if only one of the alleged representations, to wit, that the horse was registered in the Pereheron Stud Book of France, proved to be false, while in the other a verdict for substantial damages was authorized if there was a breach of either warranty. The fifteenth instruction given for the defendant is likewise inconsistent with the plaintiffs’ fifth instruction. After reciting the alleged warranties as to the registration of the horse in the American and French books, this instruction-stated that if Peco “was not registered in said books or in any part of them, then your verdict will be in favor of the defendant upon his counterclaim for the difference in value of the horse Peco at the time of such sale without such registration, and the value of such horse if he had been so registered, etc.” Besides under the evidence the instruction declares an erroneous rhle for the admeasurement of the damages (if any), for as before stated the decreased value of the horse by reason of a partial registration was not shown; hence under the proof the plaintiffs’ instruction declared the correct rule.

On the question of -pedigree the court on motion of plaintiffs’ instructed the jury as follows:

“The jury is instructed that in the contract read in evidence, plaintiffs did not agree to furnish defendant with a pedigree of the horse Peco, or certificates of his registration, and plaintiffs were not required to do so; and if the jury find from the evidence that said horse Peed was in fact registered with the numbers as stated and set forth in said contract, then your verdict will be for plaintiffs.”

“The court instructs the jury that there is no question of pedigree in this case and it makes no difference whether said horse Peco had a known pedigree or not, if said horse was actually registered without pedigree under the registration rule in force at the date of his registration.”

The thirteenth instruction given for the defendants is as follows:

“The court instructs the jury that if at the time the said Dillon Bros., as agents, sold said horse Peco to defendant Sturgeon, they or either of them represented by the'written contract as explained by the acts, words and conduct of the parties at the time to defendant, that said horse was a pedigreed animal, and said Sturgeon relying upon said representations bought the same, and that said animal is not pedigreed as represented, then plaintiffs are liable in this action, and it will be your duty to so find.”

It is insisted by the plaintiffs that the defendant’s instruction is misleading, and that it is inconsistent with theirs. The defendants argue that the words “pedigreed animal” as used in the instruction meant a registered animal; that the words pedigreed and registered have substantially the same meaning. The evidence tended to show a radical difference in the meaning and application of the two words; for instance, horses belonging to the earlier importation were entitled to registration whether they had any pedigree or not. We therefore think that the instruction as worded might have confused the jury.

The plaintiffs asked and the court refused to give the following instruction:

Rtions!'D mstrac“The court instructs the jury that if they find from the evidence that the horse Peco was in fact imported to America in 1881, and that under the rules of the association that issued the Perdieron Stud Book of America he was entitled to be registered in said book because he was so imported, and he was in fact registered in said book as number 1615, then it makes no difference whether the association controlling said Perdieron Stud Book of America, in its publication subsequent to such registration, listed said horse in the main portion of said book or in its appendix, and such registration was a full compliance with the terms of the contract read in evidence as to his registration in the Perdieron Stud Book of America.”

This instruction in the form in which it was asked was properly refused. It will be observed that the plaintiffs claim that Peco was first registered in the second volume of a book entitled “The Percheron-Norman Stud Book.” The recital in the bill of sale states that he was registered in the Perdieron Stud Book of America. If the recital was intended as a warranty, it not only implied that Peco was registered in the last named book, but was rightfully entitled to such registration. The evidence introduced by plaintiffs tended to show without special contradiction that these various books were issued under different names, but by the same association, viz., the American Percheroip Horse Breeders 'Association; that the horses registered in the first three volumes were entitled to registration in the fourth volume; that Peco was registered in the second volume; that under the rules of the association he was entitled to be registered in the fourth volume; that for convenience merely and as a matter of form his name was placed in a portion of the volume designated as an appendix, and that the fact it so appeared in the book did not affect the validity of his registration. An instruction stating these facts hypothetically would be proper, for if such are the facts the registration of the horse in the appendix was a proper registration of him in the Percheron Stud Book of America within the meaning of the contract of sale.

For the errors pointed out the judgment of the circuit court will be reversed and the cause remanded.

Judge Bland concurs; Judge Bond dissents.