
    Thompson & McDonald v. Miser.
    
      Sale of stallion for breeding purposes — -By one not dealer in horses— No implied warranty by vendor.
    
    In a present and executed sale of a stallion, by one who is not a dealer in such horses for breeding purposes,'1 there is no implied warranty that the stallion is reasonably fit for breeding purposes, although the seller knows that the vendee buys the horse for such use. (Hadley et al. v. 'The Clinton County Importing Co., 13 Ohio St., 502, followed.)
    (No. 11546
    Decided June 7, 1910.)
    Error to the Circuit Court of Jefferson county.
    On the 13th day of March, 1901, John G. Thompson, one of the plaintiffs in error, sold to the defendant in error, John G. Miser, a stallion owned by Thompson and the other plaintiff in error, Andrew W. McDonald, for $800 cash and $100 on July 1, 1902, providing the stallion served eighty or more mares during the year 1901.
    There was a written contract, a copy of which is as follows:
    “This contract of agreement made this, the 13th
    
      day of March, 1901, between John G. Thompson, party of the first part, and John G. Miser, party of the second part, both of Jefferson County, Ohio.
    “Wherein : Party of the first part sells to party of the second part the stallion Royal Windsor (9059) (10005) and in consideration party of the second part pays the sum of ($800) eight hundred dollars cash on the signing of this contract and party of the second part further agrees to pay ($100) one hundred dollars more on July 1, 1902, provided, the said stallion Royal Windsor (9059) (10005) serves eighty or more mares during the .year 1901.
    “J. G. Thompson,
    “(Signed) ' '“J. G. Miser.”
    In 1903 the defendant in error commenced an action against the plaintiffs in error to recover damages in the sum of $700 on the ground of false representations in the sale. The answer does not appear in the printed record, but it does appear that upon a trial a verdict for $365 was rendered and judgment entered upon the verdict, and that on error in the circuit court, the judgment was reversed on the ground that the verdict was against the evidence, and the court erred in the admission and in the exclusion of evidence and in its charge to the jury.
    An amended petition was then filed, setting up two causes of action, a copy of which is as follows:
    “Now comes the plaintiff herein with leave of the court and says that at the time hereinafter mentioned, defendants were co-partners doing business in Jefferson county, Ohio. That said defendants were breeders and dealers in horses, stallions, etc., and at the time hereinafter mentioned were engaged in breeding, raising and dealing in breeding horses for breeding purposes.
    “That on the 13th day of March, 1901, said defendants sold to plaintiff a certain stallion ‘Royal Windsor’ for breeding purposes, for the consideration of $900; cash in the sum of $800 and $100 in July, 1902. _
    _ “That said defendants were informed and knew of the purpose for which said horse was wanted, and sold him to plaintiff for breeding purposes and no other, and that said defendants thereby impliedly warranted said horse to be fit and suitable for breeding purposes and a reasonably sure foal getter; and said plaintiff accepted said horse' with the implied warranty and belief that said stallion was fit for the purpose of breeding and a reasonably sure foal getter.
    “Plaintiff furthet says that said stallion was not as represented; did not fulfill said warranty and did not answer the purpose for which he was warranted and for which he was bought and sold; he was not an average breeder and was not a reasonably sure foal getter. That said plaintiff gave said horse a fair trial of two seasons and he at no time was reasonably fit for breeding purposes and was not a sure average foal getter. Plaintiff was therefore damaged in the sum of $800.
    “Plaintiff for a second cause of action says that on the 13th day of March, 1901, the defendants sold and delivered to plaintiff a certain stallion ‘Royal Windsor’ for the sum of nine hundred dollars. That the defendants for the purpose of inducing plaintiff to purchase said stallion and enter into the contract for the payment of said price, and with the intention of deceiving plaintiff, then stated to plaintiff that said stallion was a sure average breeder and would get with foal 60 per cent, of the mares bred to him; that they had a 60 per cent, guarantee for said stallion which said stallion fulfilled; that he was a 60 per cent, breeder and a sure average foal getter.
    “Said plaintiff relying upon said representations was induced thereby to purchase said stallion for the sum of $900, payable as shown by the paper writing hereto attached and marked exhibit ‘A.’
    
    “Said representations were false; said stallion was not as represented by defendants; he was not and is not a sure average foal getter and was not a sixty per cent, breeder and is not and was not reasonably fit for breeding purposes. Said defendants did not have a 60 per cent, guarantee when said representations were made as aforesaid, but on the contrary, at the time said plaintiff purchased said stallion, the defendants had no guarantee as represented and never had more than a conditional guarantee which had expired and the truth about which defendants concealed from plaintiff and misrepresented as aforesaid, for the purpose of inducing said sale.
    “Said representations were false and said defendants knew them to be false or should have known them to be false at the time they were made; and the aforesaid conduct and statements of defendants were made' with the intention of deceiving plaintiff and inducing him to purchase ■said stallion; said plaintiff had faith in the conduct and statements of defendants; relying thereon and deceived thereby, he purchased said stallion for the purpose aforesaid greatly to his'loss and damage.
    “Wherefore, by reason of the allegations .aforesaid, plaintiff has sustained damages in the sum of $800 for which he asks judgment, and for all other and proper relief.”
    The defendants answer, admitting the sale, but deny “that they or either of them ever stated or represented to plaintiff that said stallion would get with foal 60 per cent, of the mares bred to him and further deny that they or either of them stated or represented or guaranteed that they had purchased said stallion on a 60 per cent, guarantee or that he was guaranteed to get with foal 60 per cent, of the mares bred to him, but say and aver that they did purchase said stallion from one Alex. Galbraith on the 4th day of March, A. D. 1899, and that said stallion was guaranteed by said Galbraith to defendants, to leave with careful handling-60 per cent, of foals from mares known to be regular breeders, but defendants aver that no statement or guarantee was made by defendants or either of them as to the terms or conditions on which defendants had purchased said stallion.” Defendants further aver that the plaintiff did not properly handle the stallion but misused him. The case was again tried to a jury and a verdict returned for $500 upon which judgment was entered and the judgment affirmed on error in the circuit court.
    
      
      Mr. Henry Gregg and Mr. Ira C. Blackburn, for plaintiffs in error.
    Mr. Miser examined the horse and made a thorough investigation and spent some time in making. said examination according to his own testimony. “Where a definite and ascertained article is agreed upon” (as in this case this horse, Royal Windsor) “and the buyer gets the very thing he barg-ained for, there will be no warranty implied that it is suitable.” Mechem on Sales, Sections 1311, 1155. And this is the case where the party selling is the grower and knew the purpose of the buyer and it is equally true of a dealer in like articles under similar circumstances, but in this case the evidence shows that plaintiffs in error were neither the growers, breeders nor dealers in horses and this evidence is uncontradicted. White v. Stelloh, 74 Wis., 435; Eagan v. Call, 34 Pa. St., 236; Lord v. Grow, 39 Pa. St., 88; Boiler Co. v. Duncan, 87 Wis., 120; Horner v. Parkhurst, 17 Atl. Rep., 1027; Seitz v. Refrigerating Co., 141 U. S., 510; Hight v. Bacon, 126 Mass., 10; Shisler v. Baxter, 109 Pa. St., 443; Weimer v. Clement, 37 Pa. St., 147; 3 Page on Contracts, 2285; Swan’s Treatise, 826; Scott v. Renick, 35 Am. Dec., 177; McQuaid v. Ross, 85 Wis., 492, 39 Am. St., 864; Mechem on Sales, Sections 1311-1320.
    No warranty implied on sale of ascertained chattel open to inspection. Mechem on Sales, Section 1355.
    Mr. Miser wrote the contract and if there was to be any warranty in this kind of a sale under the law governing such a sale it was Mr. Miser's duty to have taken advantage of this and have so drawn the contract that it would have contained an express warranty. 3 Page on Contracts, 2285.
    Knowledge of purpose no warranty of fitness. Marsden v. Soper, 11 Ohio St., 502; Benjamin on Sales, Section 647.
    
      Mr. Jay S. Paisley, for-defendant in error.
    In the case at bar the very thing bargained for by.defendant in error was a sure average breeder —at least 60 per cent. The evidence clearly shows that Miser did not get the “very thing he bargained for.” Redhead Bros. v. Cattle Inv. Co., 102 N. W. Rep., 144; McCorkell v. Karhoff, 90 Ia., 545, 58 N. W. Rep., 913; Wingate v. Johnson, 101 N. W. Rep., 751; Bank v. Prase, 36 N. E. Rep., 378; Supply Co. v. Davidson, 8 C. C., N. S., 417, 75 Ohio St., 611.
   Summers, C. J.

The court charged the jury that the second cause of action was founded upon an express warranty and upon false and fraudulent representations, and then said that there was no evidence to support that cause of action and that the jury should not consider it. The court then charged the jury, before argument:

“If you find from the evidence that the defendants were breeders or dealers in breeding horses and that the stallion, Royal Windsor, was sold to plaintiff for breeding purposes, and that it was so known and understood by both parties, then I charge you, in the absence of express warranty, that there was an implied warranty that said stallion would be reasonably fit for breeding purposes and a reasonably sure average breeder; and if you shall also further find from the evidence that said stallion was not a reasonably sure foal getter and reasonably fit for said purpose, without any fault of plaintiff, you should find for the plaintiff, J. G. Miser.”

The court was in error in both instructions. The second cause of action was not based upon an express warranty but upon deceit, and it appears from page 67 of the record that the plaintiff testified as follows: “Of course, I knew where' he had bought the horse before that, from Mr. Galbraith. I asked him on what terms he had bought the horse and he told me he had bought that on a 60 per cent, guarantee and he said that he had fulfilled that guarantee, that he was a sure breeder with them. He said that he was a sure breeder and had been a sure breeder with them, and I thought, if he was sure with them, he would be sure with me. I bought him with that understanding.”

The first cause of action was grounded upon an implied warranty, and the court instructed the jury that if the defendants were breeders or dealers in breeding horses and sold the stallion to the plaintiff for breeding purposes, and it was so known and understood by both parties, then, in the absence of an express warranty, there was an implied warranty that the stallion would be reasonably fit for breeding purposes and a reasonably sure average breeder; and that if they found that he was not a reasonably sure foal getter and reasonably fit for that purpose, without any fault of plaintiff, they should find for the plaintiff. There was no evidence tending to prove that the defendants were breeders or dealers, and, if they were, the instruction is contrary to the law laid down by this court in Hadley et al. v. The Clinton County Importing Co., 13 Ohio St., 502.

On page 171 of the record McDonald- testified, and his testimony is uncontradicted, that he was not such a producer or dealer, that he had several teams, and that wishing to raise some good horses for his own use, and in order to help Mr. Thompson buy a good horse when his other horse died, he took a half interest in the stallion, that he bred some of his mares to the horse, that he had nothing to do with the sale of him, and when Mr. Thompson first asked permission to sell him he said “no,” but that he afterwards told him to sell him if he wished to. And as to Mr. Thompson, the evidence does not show that he was a dealer in stallions, but that he had a couple of young stallions and offered to sell one of them to the plaintiff, that the plaintiff came to his place to see these stallions, but took a fancy to the horse Royal Windsor, that he remained over night at Mr. Thompson’s residence, examined the stallion Royal Windsor several times and also looked at a number of his colts, some owned by -Mr. Thompson and others in the neighborhood, and at some mares that were in foal by the stallion. It further appears from the evidence that the plaintiff himself had kept a stallion for breeding purposes for a number of years.

In Hadley et al. v. The Clinton County Import ing Co., supra, there was a sale at auction of imported breeding cattle, and the plaintiffs purchased a cow for breeding purposes paying for her $1,050. A short time previous to the sale, the vendors had, by artificial means, taken from the cow a calf which had the appearance of being dead for several weeks prior to its delivery, and it was claimed that this in the opinion of breeders greatly, if not totally destroyed the value of the cow for breeding purposes, and- that this fact had not been made known to the purchasers. The suit was to recover damages, either on account of a warranty, or on account of fraud. Tt was held: “1. In executed contracts of sale of personal property, the rule of the common law is, caveat emptor, and there is no implied warranty as to the quality of the article sold. But' fraud in the vendor constitutes an exception to the rule. 2. Where the evidence tended to^ show, that a cow had been sold and purchased for a breeder, and to improve the plaintiff’s herd of cattle, that there was a latent defect, which would greatfy impair, if not destroy her capacity to breed, that this was known to the vendors, and unknown to the vendees, and was not disclosed at the time of sale, and a charge was asked that if these facts were found by the jury, then, and in that case, the defendants would be guilty of practicing a fraud. Held: that the charge was properly refused, as asking from the court a conclusion of fact and not matter of law.”

The common law maxim of caveat emptor is stated as follows: “It is the well settled and general rule of the common law, differing in this respect from the civil law, that, upon the present and executed sale of a definite, ascertained and existing chattel which is open to the inspection of the buyer, and of which the seller is neither the manufacturer nor the grower, no warranty whatever as to quality, fitness or condition is implied. In such cases, unless there is fraud or the seller gives an express warranty, the rule of the common law is practically without exception that the buyer purchases at his own risk. Caveat emptor is the invariable maxim*. If the buyer wishes further protection than his own inspection or judgment can give him, he must exact a warranty.” 2 Mechem on Sales, Section 1311; Rodgers & Co. v. Niles & Co., 11 Ohio St., 48, 53; Jones v. Just, L. R., 3 Q. B., 197. There are many exceptions to the rule. Scott, J., in Rodgers & Co. v. Niles & Co., 11 Ohio St., 48, 53, says that the exceptions are found in cases where it is evident that the purchaser did not rely upon his own judgment of the quality of the article purchased; the circumstances showing that no examination was possible on his part, or the contract being such as to show that the obligation and responsibility of ascertaining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an article for a particular purpose or use.

In Scott v. Renick, 1 B. Monroe, 63, in a suit for a rescission of the purchase of an imported short horn cow, Mr. Chief Justice Robertson said: “There is no proof of either fraud, express warranty, or even any misrepresentation by Renick. And we" cannot admit that Scott, having as he had, as much or nearly as much acquaintance as Renick had with the cow when he made the contract of purchase, the law implied any warranty that she was, or would continue to be a good breeder merely from the fact that she was bought with that expectation and for that kind of use. In such a sale of such an article, it seems -to us that custom, policy and law unite in applying the maxim caveat emptor, -and that the purchaser takes the thing upon his own judgment, risking both the quality and the value of it.” In White v. Stelloh, 74 Wis., 435, it is held:- “A bull calf at the time of sale having been but three months old, apparently free from defects, and present to the view of the purchaser, it cannot be held as a matter of law that his sterility, which transpired two years later, existed at the time of sale and that there was an implied warranty that at maturity he would possess the power of procreation.” In McQuaid v. Ross, 85 Wis., 492, it is held: “Where, upon the sale of a bull, both parties are alike destitute of knowledge or the means of forming an intelligent judgment as to his ability to generate his kind, and there is no misrepresentation' or fraud and no express warranty, no warranty can be implied in that respect merely because a full price was paid for a bull for breeding purposes and the seller knew that he was being purchased for that purpose.” In Merchants’ & Mechanics’ Savings Bank v. Fraze, 9 Ind. App., 161, 53 Am. St. Rep., 341, it is held that there is an implied warranty in the sale of a stallion for breeding purposes, when the sale is made by one who raises horses of that kind, deals in them, and therefore knows their qualities, that he shall be reasonably fit for breeding purposes.- This case seems to have been followed in the instant case, but in that case, the sellers were producers and dealers, and the contract was treated as executory, though it was stated in the opinion that it was not strictly such. As we understand Hadley et al. v. The Clinton County Importing Co., 13 Ohio St., 502, supra, the rule of caveat emptor applies to the present case and the only issue for the jury was that of fraud. The contract was in writing and contains no warranty, and the purchaser seems to have assumed that the horse was a sure foal getter, for he agrees to pay an additional sum if the liorse covered a stated number of mares, but he avers in his petition that the defendants made false representations upon which he relied and upon the trial he so testified, so that the judgment must be reversed and the cause remanded for a new trial.

Judgment reversed.

Davis, Shauck and Price, JJ., concur.  