Van Allen v. Allen — 1 Hilt. 524

Majority

p. 524

John J. Van Allen v. John N. Allen and others.

Headnote

V. sold a horse to A. for $130 — $V0 in cash, and $S0 in A.’s due bill. He represented the horse to be sound and kind, and agreed that A. might try him, and if the horse did not prove satisfactory he would take him back and return the money and the due bill. A., after trying the horse, and having full knowledge of (he facL that ho had a crack in his hoof, told V. that the horse suited him, and he never returned or offered to return him. In an action on the due bill, A. set up, as a defence, a breach of warranty. lkld-~

L That there was no warranty. If A. was not satisfied with the horse, he should have returned him.

II.i The evidence showing that the horse was worth $130, and no proof given as to his value without the defect, therefore, even assuming that there was a warranty, tho defendant had shown no damage, and the plaintiff was entitled to judgment.

Parol evidence is inadmissible to show that a duo bill, purporting to be payable immediately, was intended to be payable at a different time.

Appeal by defendants from a judgment of the Sixth District Court. This was an action on a due bill made by tiie defendants in the following words:

“New York, April 9tk, 1857.

“ Balance due Mr. John J. Yan Allen sixty dollars on one horse.

“ $60. (Signed) Allen Bp.othees.”

p. 525

. The nature of tbe defence and tbe facts in tbe case are fully stated in tbe opinion of tbe court.

Diefendorf & Aiken, for tbe appellants.

Thomas J. Kipp, for tbe respondent.

— On April 9tb, 1857, plaintiff sold and delivered a borse to tbe defendants for $130, and represented the animal to be sound and kind. Upon tbe delivery, $70 was paid in cash, and $60 in tbe due bill on wbicli this action is brought. The defendants were to try tbe horse, upon the agreement that, if they did not like him, tbe plaintiff would take him back and return tbe money and due bill. The horse was used Of ibe defendants in their ice business. After the first clay’s use, and with a full knowledge by them of the existence of a crack in bis hoof, they informed the plaintiff that the horse suited them.

They never returned, or offered to return, tbe borse, but upon being sued on tbe due bill set up as a defence—

1st. That tbe due bill was not to become payable until a reasonable time after they should become satisfied with the borse.

. 2d. That the borse was warranted sound and kind, whereas be was baulky, and, by reason of the cracked hoof, was unsound, constituting a breach of tbe alleged warranty, whereby tbe defendants sustained damage, &c.

As to the first ground of defence, it is sufficient to say, that tbe due bill, on its face, purported to be and was clue and payable immediately (Cornell v. Moulton, 3 Den. 12 ), and parol evidence was inadmissible to show that it was intended to be payable at a different time. Fitzhugh v. Runyon, 8 John. 375 ; Thompson v. Ketcham, ibid. 190.

As to the second, admitting that there was a warranty, tbe defendants have shown no damage. They purchased the horse for . $130, and the evidence is that he is now worth that sum. There

p. 526

is no testimony whatever showing what would be his value without the crack in his hoof.

But there was ■ no warranty. The horse was sold upon the agreement that the defendants were to use him, and determine whether they would keep or return him. They did use him, expressed themselves satisfied, never offered to return him, and should now pay the price they agreed to.

Judgment affirmed.