Campbell v. Tinker , 137 Mo. App. 436 ( 1909 )

GOODE, J.

(after stating the facts). — The first declaration in the present case merely said if the court found the team first purchased was delivered to defendant for trial, thereafter plaintiffs were notified by him it was satisfactory, were paid and gave defendant a bill of sale, or a warranty, plaintiffs were entitled to recover. That declaration was sound, for certainly if the horses were accepted and paid for by defendant as satisfactory, he had exercised his option to keep or return them, and thereafter he could have no redress except for fraud, or on a warranty, if one was given. Execution of a bill of sale by plaintiffs and acceptance of it by defendant, were not essential to an election by him to keep the horses, but might be regarded as ■ circumstances which favored the conclusion that he had elected to keep them. It was not more necessary to refer to said circumstances in the declaration, than to refer to any other fact conducing to prove the ultimate fact of a decision by defendant to accept the team; but reference to them was not prejudicial to defendant; for the declaration required the court to find for plaintiffs .on the essential fact of whether defendant notified them he would accept the team, and the inclusion of certain circumstances which helped to induce the finding, was immaterial.

Counsel for defendant excepted to changes made by the court in other declarations and insists these changes drew into the case for decision issues not joined in the pleadings, to-wit, whether defendant ought to be regarded as having accepted the horses first purchased if he did not return them to plaintiffs in a reasonable time, or if one of them was injured or crippled while in his possession. The argument runs thus: in replying to defendant’s averment of a purchase, of the first pair of horses with the privilege to return them if they proved unsatisfactory, plaintiffs alleged the sale was absolute and unconditional; further, according to all the testimony, the horses were returned to and received by plaintiffs ; under such pleadings and evidence, whether or not they were returned in a reasonable time was an irrelevant inquiry, the real question being whether this was done pursuant to an option accorded .to defendant in the contract of sale, as he alleged, or merely in compliance with his request to sell them for him, as plaintiffs alleged. Defendant’s view of the pleadings is substantially correct. The replication mentions the occurrence of injury to one of the horses while defendant had it, but does not put the fact forward in a definite manner as a reason why defendant could not exercise his option to reject them if such an option had been given. Hence it may be allowed the declarations of law widened the issues; but scrutiny of the declarations requested by defendant shows this course was invited and hence is not available for reversal. [Christian v. Insurance Co., 143 Mo. 460; Sowden v. Kessler, 76 Mo. App. 581; Plummer v. Milan, 79 Mo. App. 439.] Take the first modified declaration and compare the italicized part inserted by the court with the remainder, and it will be seen the theory of law propounded in the declaration as requested was not changed. The theory was that if the first team was sold on approval and defendant was to have a reasonab’’ time to try it and return it if unsatisfactory, there was no absolute sale, unless, after trial, he approved the horses, or failed within a reasonable time to notify plaintiffs they were not approved. The insertion made by the court required defendant to return the horses within a reasonable time, as well as give notice of rejection. But defendant’s supposed right to return them if they were unsatisfactory, was mentioned in the requested part of the declaration in a connection that implied return in a reasonable time; which, of course, would be a necessary incident of refusal, to accept them. The amendment of the second requested declaration merely required defendant to exercise his option to reject and follow up his decision with reasonable notice to plaintiffs. In the third declaration the amendment Avas more elaborate but of the same legal effect. It said if the court did not believe defendant accepted or returned the horse within a reasonable time, and after such time they were injured, crippled or rendered less valuable, defendant had no right to return them. According to defendant’s own theory he was bound to keep them unless he gave timely notice to the contrary. In default of such notice the sale would become absolute (1 Mechem, Sales, secs. 681, 682), and a subsequent injury would not affect the matter one way or the other and hence need not have been referred to in the declaration; but the reference was not unfavorable to defendant, inasmuch as the court was required to find the main fact: retention of the horses an unreasonable time without notice of disapproval. We have been cited, to Head v. Tattersall, L. R. Exch. 7, and agree with the doctrine of the case, namely, that if a horse is sold on trial and is injured while in the purchaser’s possession, but without his fault, he will not be deprived thereby of the right of rejection. The decision was based on the concession that the injury occurred in the period allowed for trial. If ,no definite period is arranged, a reasonable one is implied, and so defendant concedes in the present case. Now it will be observed the reference to the injury in the declarations was in terms which showed the court meant an injury after lapse of reasonable time for trial. As said, we do not see how an injury then occurring could have any effect on the rights of the parties, which would have been fixed by the expiration of the time in which defendant might decline the horses; but neither do we see how requiring the court to find not only that the time had expired, but also that one of the horses had been hurt after its expiration, could be prejudicial to defendant. Such an accident would not enlarge his right of rejection, but rather would lend emphasis to plaintiffs’ right to treat the sale as absolute. [Strauss v. Kingman, 42 Mo. App. 208; Carter v. Wallace, 32 Hun 384.] What we have said in this connection applies to the second declaration given by the court of its own motion. The injury to the horses by use referred to in said declaration, clearly means an injury after the end of the period of trial and in which defendant might have returned them as unsatisfactory. The declarations are verbally inexact, but they show the court tried this case on correct legal theories, considering the fact that defendant himself introduced by his requests the question of whether his alleged election to disapprove was timely.

The judgment is affirmed.

All concur.