Newberry v. Bennett

Citations

• 38 F. 308
• 13 Sawy. 632
• 1889 U.S. App. LEXIS 2819

Syllabus

<p>1. Sale — Warranty—Evidence.</p> <p>Plaintiff testified that in the negotiations for the sale of a horse worth $2,000, which he desired for breeding purposes, it was agreed that the warranty sued on, which was that the horse was a reasonably sure foal getter, should he given, and at the close of them, plaintiff executed deeds for the land which was exchanged for the horse, and that defendant at the same time executed the bill of sale of the same date containing- the warranty. Defendant testified that he never agreed to give the warranty, and did not give the bill of sale and warranty at the time of the completion of the sale, but that several days after, plaintiff asked for a bill of sale as a favor, and to accommodate him defendant made the bill of sale, using a blank therefor, and not noticing that it contained the warranty; that he had two forms of bills of sale, one of which contained a warranty and the other did not, and that he inadvertently used the former. Defendant was in the habit of giving a bill of sale and warranty for horses sold. Held, that the evidence showed the execution of the bill of sale and warranty at the time of the sale.</p> <p>2. Same — Damages.</p> <p>Defendant having agreed to replace the horse on delivery of it to him in case it should prove barren, and ample evidence of its unfitness for breeding purposes having been given in the three months following the purchase, plaintiff should have then returned it, and cannot recover expenses incurred upon it after that time.</p>