Bailey v. Peters

18 Ohio C.C. Dec. 823

• Court: Richland Circuit Court
• Decided: July 1, 1906
• Status: Published

Opinion

PER CURIAM.

This is an action to recover on a promissory note.

The. defendants admit the execution of the note but say that the same was executed to evidence the purchase price o-f a horse purchased by the defendants from the plaintiffs on March. 3, 1902; that said plaintiffs, as a part of the consideration of the purchase price of said horse, represented and warranted the same to be- sound and free from disease, but that it was then afflicted with disease which resulted in the death of the horse in a few days or weeks after its purchase. They claim that by reason thereof, there was a total failure of consideration, and that defendants were put to great expense in. the care and treatment and nursing of tbe borse, and burying tbe same, and ask to recover tbe sum of $150 damages, and that sufficient of said damages be counterclaimed and set off against plaintiff’s note, and that they may have judgment for the residue thereof.

Plaintiffs for reply deny generally the allegations of tbe answer and cross petition, and tbe issue so made up was tried to a jury, resulting in a verdict for defendant. Judgment was rendered thereon, and error is prosecuted to this court to reverse tbe same.

Counsel for plaintiff in error urge particularly upon tbe attention of this court, that tbe court below erred in its charge to the jury, and that the verdict is against the weight of the evidence, and we agree with both contentions of counsel for plaintiffs in error.

"We think that the court erred in its charge to the jury, touching the ability of Leopold Peters to read the English language, and in saying to the jury that a copy of the rules printed in the English language was no notice to him, and when inquiring from the jury: “Did they understand that the old gentleman was a German and might not understand the English language?” Further inquiring: “Was there anything occurred to induce them to know that the old German was a German, and in the further statement that if they knew he was a German, there was no presumption that he could read the English language. ’ ’

We are of the opinion that if any man undertakes to do business in any language, he represents, and the parties dealing with him have a right to understand, that he is able to deal in that language unless the contrary clearly appears.

If he was not able to transact business in this country in the language of this country, it was duty to protect himself by securing the services of someone who could aid him in that behalf, and therefore, when he undertook to act for himself, he, in effect, represented that he was able to take care of his side of the business transaction, and there is nothing appearing in this record that would make this case’an exception to the rule.

As to the weight of the evidence, we think it clearly appears by the evidence of the defendant, Leopold Peters, that he knew what the rules were in former sales. True, he does not admit that he understood what the auctioneer said when he said that the rules of former sales should control this one, but claims that he could not understand so much English; yet he does say very clearly that he understood him to say that the horse was sound and well broken.

We think that if he understood that much in his behalf, he ought, to have understood what was said on behalf ■ of plaintiffs; but even if he did not, and he knew that the rules were posted there for the information of purchasers at this sale, and if he knew that they were in a language that he could not read and could not understand, he engaged in the bidding at his peril, if he did not seek information from ■one who could read and could understand.

It was his duty, in other words, to advise himself when opportunity was offered, and if he failed, it was his mistake and not the fault of plaintiffs. ■

The plaintiff had a right to make the conditional warranty contained in the rules, and in sales made under these rules, the limitation thereof necessarily became a part of the contract.

The purchaser is at liberty to buy or not to buy at a sale where such rules are promulgated with such limitations of warranty; in fact the sellers might refuse by their rules to warrant at all, and then the doctrine of caveat emptor would apply; so that if there be a limited warranty the purchaser, in order to avail himself of the terms of the warranty, must comply with the conditions thereof.

Therefore, we are of the opinion that the verdict in this case is against the manifest weight of the evidence, viewing the evidence in ■connection with fhe law that must control.

¥e therefore find that there is error apparent upon the record, to the prejudice of the plaintiffs in error, in the charge of the court as above specified, and in overruling the motion for a new trial on the ground that verdict was against the weight of the evidence.

The cause is reversed for these reasons, with costs, and remanded to the court of common pleas for further proceedings and trial according to law. \

Exceptions of defendant in error are noted.