Roberts v. Applegate

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

This was a bill in chancery filed by the defendant in error to foreclose a mortgage given April 5,1883, by plaintiffs in error to secure two notes, each for $750, one due April 5, 1884, the other April 5, 1885, both bearing interest at seven per cent per annum. The defense interposed was that the notes were given for a stallion sold by Applegate to Stephen E. Boberts, with a warranty that the stallion was an ordinary foal-getter, and a pure bred English shire horse, under the name of Young Wonder, Ho. 2957, and entitled to that name and number, and that such warranty was broken.

The Circuit Court found the issues for the defendant in error and rendered a decree accordingly, to reverse which this writ of error was sued out.

The statements and representations relied upon to constitute the alleged warranty are mainly to be found in a printed catalogue issued by the defendant in error. Boberts testified that when he asked for the pedigree of .the stallion (then a colt of the age of three years), Applegate handed him a catalogue and told him that the pedigree of the horse was on page 7, and that when he asked “ about the horse being a sure foal-getter,” Applegate replied, “ there was no doubt about that and the catalogue contained all that was necessary for him to say on that subject as well as to the pedigree of the horse.” Roberts testified to some verbal statements of Applegate, which met a direct denial from Applegate, and were at most, even if deemed proven, but mere expressions of opinion as to the future of the animal. Applegate told Roberts that the pedigree and registration of the colt would appear in the 4th volume of English Cart Horse Stud Book, when that volume was issued as it appeared in the catalogue. This 4th volume was issued in 1883, and did contain the pedigree and number of the colt as did the catalogue, but the Stud Book gave the name as “ Wonder of the East” while the name given in the catalogue is “Young Wonder.” The breeder of the colt was given in the catalogue as “R. Menshaln” and in the Stud-Book, as “ R. Mendon.” These discrepancies, together with testimony tending to show that this horse was not a sure foal-getter, were relied upon as constituting a breach of the warranty.

It was clearly proven that the colt sold to Roberts was the identical animal registered in the Stud Book, and had the pedigree, age and number there given. That he was bred by “ R. Mendon” and that Applegate purchased him from Mendon in St. Edwards, Lincolnshire, England. That the name Menshaln in the cataloge was a mere error in spelling the name of the breeder, and that Applegate believed when he issued the catalogue that the true name of the colt was “Young Wonder” as there given. This mistake as to the name of the colt, if important, was known to Roberts some years before the filing of. the bill. He paid the interest upon each of the notes annually from 1883 to 1889, during several years of which period he knew of the error in the name of the horse. He finally disposed of the horse in a trade for another stallion without having ever complained to Applegate of any failure of the warranty. We think there is no merit in this branch of the defense.

As to the quality of the horse as a foal-getter the statement in the circular is—

“ He will attract attention anywhere and make his mark as a foal-getter.”

This is by no means a warranty that the “ colt would attract attention ” or prove a “ foal-getter ” but is and only purports to be an expression of the belief of the seller as to what might be expected of the horse in the future.

The decree is right and must be affirmed.