Cooper v. Ragsdale

Citations

• 96 Kan. 772
• 153 P. 516
• 1915 Kan. LEXIS 490

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Stallion — Breach of Warranty — Waiver — Fact for Jury. Whether or not there has been a waiver of warranty in the sale of a stallion by giving a new note for the purchase price after knowledge of breach of the warranty is a question of fact and not of law, and should be submitted to the jury.</p> <p>2. Same — Breach of Warranty — Return of Stallion. A stallion sold under a warranty providing for his return to the seller if the stallion does not fill the warranty must be returned at the place where the 'sale was made, unless the warranty provides otherwise.</p> <p>3. Same — Construction of Terms of Warranty — “Of Same Value.’’ A stallion “of same value” as one,.sold under a warranty must comply with the warranty and in all respects be of a value equal to the horse sold, if that horse had fulfilled the warranty.</p> <p>4. Same — Breach of Warranty — Purchaser Has Two Remedies. The purchaser of a stallion sold with the following warranty, “If the above named stallion does not get 60 per cent of the producing mares and Alleys with foal with proper care and handling, I agree to repla'ce him free of charge with another of same value upon the delivery to me of the stallion in as sound and good condition as he is at present,” has two remedies on a breach of the warranty; one to return the stallion, and the other to retain him and recover the damage sustained.</p> <p>5. Same — Breach of Warranty — Item of Damages. The expense of keeping a stallion is a proper item of damage where the warranty under which he has been sold is broken.</p> <p>6. Same — Motion for Judgment — Properly Denied. Motion for judgment notwithstanding verdict properly denied.</p>