Shull v. Ostrander

By the Court, Mullin, J.

It is difficult to say what the cause of action is that is set out in the complaint. Both fraud and warranty are alleged, and perhaps the plaintiff is entitled to have his judgment sustained, provided he has shown himself entitled to recover for either.

The first contract was fully executed by the delivery to each party of the property to which he was entitled under the contract, and a new and independent agreement entered into in reference to the same property. If the plaintiff was now suing for breach of warranty on the first sale it is quite likely he would be entitled' to recover, as there is hut little question but that the defendant warranted his horse; nor but that such warranty was brokén. But it is not claimed that this action was brought for breach of warranty, or fraud in the first sale or exchange. We must inquire, therefore, whether there was fraud or ■warranty in the second, sale. The second sale was made at the defendant’s house, after the plaintiff had taken back the. horse he received of the defendant, and informed the defendant that he thought the mare was stiff. The defendant said he thought not; after driving her he said he thought she was a little stiff, caused from cold, but thought it would pass off in a few days. The" new bargain was then made, and the plaintiff' took with him both horses, and gave the defendant his note for $100. Confining the negotiations of the parties to the time when the second bargain was made, there was nothing said by the defendant from which a warranty of the horse could be inferred, or an intention to warrant. The plaintiff’s counsel, to get rid of this difficulty, insists that the defendant is liable for the representations made, and the warranties given, in the first sale, inasmuch as the plaintiff must be held to have made the second in view of, and in reference to, what had been said by the defendant on the first sale. That the second bargain was but a modification of the first, and not a new and independent agreement.

The second bargain was a new and distinct agreement whereby the first was rescinded, and new obligations assumed by the parties wholly inconsistent with the first. The first was an exchange of horses, the second was a sale, by the defendant, of his horse, after rescinding the first, for the sum of $100.

The question now is, do the representations and warranties given on the first enter into and form a part of the second. If they do, the judgment is right, and should be affirmed; if not, it must be reversed. The general rule is, that the representations and affirmations constituting the warranty, or the representations which are charged to he false, must be made during the negotiations for the sale (1 Pars, on Cont. 463, note e.)

In Chitty on Cont. 458, it is said the warranty must be made during the treaty, or at the time of the sale, or at least before the performance of the substantial terms thereof. In Wilmot v. Hurd, (11 Wend. 584,) it was held that, generally, a warranty of an article should be made at the time of the sale, but if, when parties are first in treaty respecting the sale, the owner offers to warrant the article, the warranty will be binding, although the sale does not take place until some days afterward.

In Hopkins v. Tanqueray, (26 Eng. L. & E. 254,) the defendant owned a horse sent to Tattersall to be sold at auction. On the day previous to the sale, he saw the' plaintiff at the stables examining the horse, and said to him: “ Tou have nothing to look for, I assure you ; he is sound in every respect;” upon which representation the plaintiff expressed his satisfaction as to the soundness of the horse, and examined him no further, and on the next day bid him off for a large price, at the auction. Held this was not a warranty, although the horse proved to be unsound. The court say there was no evidence to go to the jury of a warranty, the representation not being made in the course of, or with reference to, the sale. Can we say that the representations made with reference to an exchange of horses would have been made had the second bargain been the one under discussion ? It seems to me not. When that bargain was concluded, the rights of the parties were fixed, and a new bargain, made in regard to the same property, must rest on its own facts and circumstances. Before the second bargain was made, the plaintiff had discovered defects in the horse, and it was on account of them that the defendant entered into the new agreement. It would be most unjust to the defendant to hold him to a warranty given on the first trade, when it was to get rid of it he entered into the second. I am, therefore, of the opinion that the representations made during the negotiation for the first bargain could not be considered as entering into, or forming a part of the new one; and that there is, therefore, no evidence of fraud or warranty in the new sale to support the judgment.

[Oswego General Term, July 14, 1865.

The judgment of the county court, and of the justice, should therefore be reversed.

Judgment reversed.

Allen, Mullin, Morgan and Bacon, Justices.]