
    Simon Desson, Resp’t, v. Carl Antony et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    Sale—Breach op warranty—Counterclaim.
    Defendants sold to plaintiff a pony which they warranted to be sound and kind. It not being so plaintiff returned it and defendants agreed to keep giving a pony untd he was satisfied. After several exchanges, one was offered which plaintiff agreed to aceept, but defendants refused to deliver except on payment of an additional sum. In an action to recover the money paid for the first pony, Held, that as the parties never agreed on the price for the last horse and defendants refused to deliver it, the title remained in defendants and they could not counterclaim for its keep.
    Appeal from judgment of the seventh judicial district court, on a trial by the justice. Action for money had and received.
    
      Frederick H. Ernst, for app’lts; Leon Lewin, for resp’t.
   Pryor, J.

The appellants sold respondent a pony horse with a written warranty that he was “sound and kind.” The purchase price, $100, was paid. On trial the horse proved anything but lrind, and so there was a breach of warranty. The breach of warranty, however, did not entitle the purchaser to damages. Nevertheless the buyer returned the horse and the sellers received him, saying that they “ would keep giving me a pony until I was satisfied.” Thereupon they gave tlie plaintiff another horse, with a warranty that he was “sound and kind.” This horse proving unsound, from a “ deformity in the neck,” was returned, and received by the sellers, who gave.plaintiff a third horse, with a warranty, Hawkins v. Pemberton, 51 N. Y., 198, that he was “all right and perfectly kind, just the pony your boy wants.” But, this third horse had an ugly habit of lying down with the boy in the middle of the street, and of rearing on his hind feet when the girth was tightened. So the third pony was returned, and was accepted by the sellers. Then a fourth pony was produced ; but having distemper, the sellers said they would cure him, and the buyer answered that he would “ take him. in exchange for the other.” Accordingly the buyer sent for the pony, but the sellers demanded “ $110 to boot,” which the buyer refused to pay, and so the negotiation terminated. Hence this action for the $100 paid for the first pony.

Plaintiff’s demand is met by a counterclaim of eighty-one dollars, expense of the keep of the fourth pony. Hence, plaintiff is out of pocket $100; has no horse to show for it; and is, besides, required to pay eighty-one dollars for the keep of a horse which ■defendants refused to deliver to him except on payment of $110 •“ to boot.”

Upon the evidence the manifest agreement between the parties was that, for the $100 paid for the first pony, the defendants would eventually furnish plaintiff a pony to his satisfaction. Two ponies were successively delivered to the plaintiff in exchange for the first; but they being unkind or unsound, were taken back by the defendants; and when, finally, plaintiff found a pony to his purpose, he was told that he could not have him except on payment of $110 additional. This was not the bargain between the parties, but rather that for the $100 received defendants would continue to exchange until plaintiff was suited. Defendants, however, declined a further exchange except on a further payment of more than double the original paid. This demand plaintiff righteously resisted.

As the parties never agreed upon the price for the fourth pony, and defendants refused to deliver him, the title to him remained in defendants, and they cannot charge plaintiff with the keep of their own property. ‘

The case was well decided by the court below, and the judgment must be affirmed, with costs.

Bischoff, J., concurs.  