Johansmeyer v. Kearney , 76 N.Y.S. 930 ( 1902 )

GIEGERICH, J.

(concurring). According to the pleadings, as amended at the trial, the action was for the breach of a contract of warranty in the sale of a horse, the warranty being that the animal was “kind and true in all harness.” The terms of the warranty were contained in a notice attached to the catalogue of the horses offered at the sale, and according to this notice the purchaser of a horse thus warranted was entitled to a return of the purchase price if the animal refused to work. It was also provided that “the time allowed to test warranty” should expire at g o’clock in the morning of the Monday ■following the sale, and that all claims should be made “before warranty runs out.” The sale took place on Friday, and. the horse was received at the plaintiff’s place of business late that day, having been ridden from the place of sale by some person employed by the plaintiff for the purpose. On Saturday the animal was found to be so stiff in the legs that it could not be used, and this condition continued until Monday morning, when plaintiff caused it to be returned to the defendants at some time after io o’clock. Assuming that the stiffness of the' horse amounted to a demonstrated refusal to work, within the warranty, the plaintiff’s right of recovery upon the warranty depended upon his observing the conditions, which were made a part of it, and one of these conditions was that the claim should be made before g o’clock on Monday morning. This condition, which provided for a period of trial of more than two days, cannot be deemed an unreasonable one (28 Am. & Eng. Enc. Law, 804, 805), and it appears that a strict compliance therewith was relied upon by the defendants for the purposes of their dealings with the persons for whom he made sales. Apart from the warranty, the mere stiffness of the horse would afford no ground for a rescission, and the defendants’ failure to object to the lateness of the return did not impart a waiver of the condition that all claims should be made before 9 o’clock, for the person who returned the animal was intoxicated, and the defendants were unable to discover whether a claim was then made under the warranty or not. Thereafter the horse was simply left in the defendants’ custody because the plaintiff stood squarely upon his claim under the warranty, and refused to consider the possibility of a further trial. This being the situation, the defendants were under no duty of pointing out just what defense they had to claim upon the warranty, and the failure to argue the question further with the plaintiff could not amount to the waiver of the reasonable condition which concededly was not performed. The warranty in this case contemplated a return of the purchase price, and this, in turn, involved the return of the animal, should the purchaser elect to return it rather than sue for damages, after acceptance; but after the agreed period for a return under the warranty had expired the right of the purchaser to rescind could not be asserted upon the strict terms of the warranty itself, for he himself was in default (28 Am. & Eng. Enc. Law, 805), and the return must be justified upon some ground which might support a rescission irrespective of the warranty (Id. 816). As the case is presented, the evidence is insufficient even to establish a rescission, because the fact that the plaintiff returned the horse does not help his cause of action as long as the defendants did not in some way acquiesce in plaintiff’s claim. None of the rulings of evidence affect the plaintiff’s rights upon the theory of the decision, nor, as we find, was any error actually committed in the admission or exclusion "of testimony. The judgment should be affirmed, with costs.

Judgment affirmed, with costs.