The record-union., 1891-03-14
SUPREME COURT DECISIONS.
Filled March 6, 1871
Woody EFT AL, Respondents,
VIC No IA 07O

The defendants sold and delivered to
the plaintiffs a stallion called Lord Rox-
bury for the sum of $1,000, and gave to
them the following contract:
| s'TULARE, Cal, February z, 1887.
! "This is to certify that we, f. Bennett
| d Son, have this day sold Lord Rox bury
| ~ to j. III. Woody, James Twaddle, /.
| n. Wright and Irwin Brothers, and we
guarantee that the two small thicknesses
on the hooks shall go off if said parties
use proper applications and rubbing, and
| in the case said punches do not disappear
we will exchange with said parties for
any horse of the same price we may have
'E. BENNETT IL Son"
The plaintiffs gave evidence tending to
show that they used the applications rec
commended by the defendants, but that
the punches We're hereditary and ire
movable. On these points the evidence
is conflicting. But there is no dispute
about the fact that the punches did not
disappear. And after Il time the plaintiffs
requested that an exchange be made for
another horse as provided by the con-
tract. The defendants at first expressed a
willingness to make the exchange, and
the plaintiffs thereupon selected Il horse
called Lord RoXbury Second, then in
Kansas. But after some correspondence
on the subject the defendants annexed a
condition to the right of exchange which
will be considered below. The plaintiffs
thereupon brought the present action
The jury found verdict i'll their favor
for 81 500, and the defendants appeal
We are somewhat inclined to think that
the contract contains two separate and
distinct undertakings. viz: "a that the
blemishes should disappear if proper
treatment was used; and, (2) that if they
did not disappear, the defendants would
exchange the horse for another of the
same price; and that, since the under
tak1ngs were separate, it was not neces-
sary to an action on the first to show that
plaintiffs had offered to exchange, and
not necessary to an action on the second
to show that proper treatment was used.
But we shall assume in favor of the de-
PENDANTS that it was necessary to any re-
covery by plaintiffs that they should
show both that they had used proper
treatment and that they had made a
proper offer to exchange.
l. There was evidence tending to show
| that the defendants told the plaintiffs '.to
use on these punches any ordinary
| simple remedies that is usually used for
that purpose" and that the plaintiffs
used remedies which were ordinarily
used for such purpose and afterwards en-
ployed veterinary. There was evidence
| contradicting the foregoing. But at this
stage of the case the evidence in support
of the verdict must be presumed to be
true, and if true it was sufficient. 1t
| must be taken to lie the fact therefore
| that the plaintiffs used proper treatment.
2. 1t is argued that in their letter an
| nounclng their selection ofanother horse
| (then in Kansas), the plaintiffs made it a
| condition that he 'sshould arrive all ripbt''
at Tulare, and that they had no right to
impose such condition. 1t might per-
haps be suggested in this connection that
! the defendants senior partner admitted
| on the stand that it was his understand
| ing that the exchange should be made at
| Tulare. But it is not necessary to eX-
| press an opinion upon the merit of the
above contention, for the reason that.
after some correspondence, the defend
| ants refused to consent to any exchange
except upon a condition which was en-
| tirely unwarranted. In q letter to the
attorney in whose hands the plaintiffs
had placed their claim, the defendants
senior partner says: I'VE are ready and
willing to change, but those parties must
take the imported English coach mare
| that we imported expressly for them, on
their order, at $1,000. That was the price [
told them she would cost them delivered
at Tulare, and they ordered US to bring
her at that price. We are ready and Will
ing to live up to our contract on the
horse, and they must do the same on the
mare or, if they do not want to take the
| mare, they must relieve us from the con-
| tract to exchange the horse" And in his
final letter on the subject he says: "We
will most willingly exchange, but, re-
member, we will send the mare with the
horse"
Now, even if it We're assumed that the
defendants could make the performance
by plaintiffs of separate and distinct
contract a condition of the right of ex-
change, the fact was that there was no
contract on the part of the plaintiffs in
reference to mare, and this was admit
ted at the trial. This conduct on the part
of the defendants amounted to refusal
to comply with their contract, and super
sedes any question as to the place of de-
livery of the new horse.
3. The evidence justifies the amount of
damages awarded.
There was evidence tending to show
that the plaintiffs purchased the stallion
for breeding purposes, and that the de-
PENDANTS knew this; that without the
blemishes mentioned he was worth the
sum paid for him, viz: s., 900; but that the
blemishes were hereditary, and injured
his value for breeding purposes, and that
with them he was worth under $500. A
foundation was laid for this evidence in
the complaint, and we think that it was
admissible and sufficient to Justly the
| verdict
4. There are several other matters which
may be briefly disposed of.
O. 1t was not error to admit evidence of
| the expenses incurred by the plaintiffs in
treating the horSe'S legs. 1t was ex-
pressly stated by the court that such evil
dence was not admitted for the purpose
of increasing the damages, but only for
the purpose of showing an effort in good
faith to remove the blemishes.
b. There was no attempt to alter or add
to the written contract by parol. The
conversations proven bore upon the con-
dltlon and value of the horse at the time
he was sold.
c. The evidence as to what plaintiffs
paid for the horse was admissible upon
the question of damages.
q. 1t was proper to prove that the
blemishes affected the horses success for
breeding purposes.
e. Evidence as to the nature of the
blemishes, their cause, and probable dura-
ton had relation to his value, and con-
sequently was admissible on the ques-
ton of damages.
j.. The defendants having told the
plaintiffs to use any ordinary, simple
remedies, and the plaintiffs having done
so, it was immaterial whetherthe witness
Dickinson thought that he could have
removed the blemishes by some remedies
known only to himself.
@. The evidence of the witness Edwards
was more favorable to the defendants
than otherwise
h. The instruction as to the proprietv
OF the remedies recommended by the de-
PENDANTS was proper (see first head of this
opinion).
4. Evidence of readiness to make the
exchange in Kansas was irrelevant for
the reasons stated in the second head of
this opinion.
We therefore advise that the Judgment
and order appealed from be affirmed.
We concur: HAYNE. c..
BELCHER, c.,
FooTE, c.
THE COURT.