Rice v. Dinsmore

Burke, J., delivered the opinion of the Court. This is an appeal by the defendant from the judgment rendered against him in the Superior Court of Baltimore City in a suit instituted against him in that Court, by Marion G. Dinsmore, trading as T. M. Dinsmore & Company. The declaration contained the common counts only, and the suit was brought, under the Speedy Judgment Act. The account filed with the narr. showed that the cause of action was for feed, amounting to $698.74, sold and delivered by ihe plaintiff to the defendant.

The defendant admitted the correctness of the account, but claimed, by way of set-off, that the plaintiff was indebted ²⁷⁸ to him in the sum of $350.00, being the purchase price of a horse alleged to have been purchased from him by the defendant. The defendant admitted in the affidavit to his pleas that he owed the plaintiff the sum of $348.74, that being the difference between the purchase price of the horse and the account sued on, and that sum was paid to the plaintiff. The only question, therefore, involved was whether the defendant was entitled to an allowance for the agreed price of the horse. It was admitted by both parties that the agreed price of the horse was $350.00, and it was shown that the horse was a fine animal and perfectly sound.

The plaintiff contended that the horse was sold to' him “on trial,” and, having died in his possession under the circumstances hereinafter stated, he was under no obligation to pay for him. The contention of the defendant was that there had been an absolute sale and delivery of the horse to the plaintiff. The following facts, appearing in the record, are all that need be stated to dispose of the legal questions presented by this appeal. About the first of March, 1912, the plaintiff, who is a retail dealer in hay, grain and feed, decided that he needed a horse to be used in connection with his business.

The defendant is a dealer in horses, and the plaintiff asked Doctor Nolan, a veterinary surgeon, to see if the defendant had a horse suitable for his use, and if he had to let him know. Doctor Nolan visited the defendant’s stables and selected from a number of horses one which he thought would suit the plaintiff. . He had this horse set apart for the inspection of the plaintiff. On Thursday following the visit of.Doctor Nolan to the defendant’s place of business, the plaintiff came to' the stables, examined the horse, agreed with the defendant upon the price and had the horse sent to his place of business.

The horse was taken sick on the following Sunday and died from congestion of the lungs on Wednesday following. The plaintiff testified that he told the defendant ²⁷⁹ to send the horse around and he would use him, and if he suited, he would keep him. The plaintiff gave the following account of the horse after he came into his possession and of his own acts in relation to him: “On Thursday the horse was sent out, and on Eriday the weather was very had and we did not work him. Saturday the weather was not much better, hut we did not want the horse to be standing up-, so we worked him about five or six hours that day.

It is customary in a case of that kind for me to go over the horse with one of the men who is practical, who has practical knowledge along that line, and I thought it was no more than right and fair for me to telephone Mr. Rico to tell him that I had not been at the store that day, and that I had not had an opportunity to go into the question of whether the horse was all right or not. ‘That is all right, Marion,’ said Mr. Rice, ‘I know he will suit you.’ I said, ‘All right, I will let you know Monday at twelve o’clock.’ Mr. Rice’s answer was, ‘All right, Marion, that will he all right; I know that horse will till your hill.’ On Sunday the man at the stable called me up and said he had to send for Doctor Rolan because the horse was a little hit under the weather, that is hb had a cold. I said that would be all right, that I would he down in Canton and I would stop at the stable and look the horse over. About three o’clock I got to the stable and I got Doctor Rolan’s report, and he said that it was nothing serious, and I then called up Mr. Rice. I thought he ought to know the conditions.

I told Mr. Rice about it and his answer was, ‘That is all right, Doctor Rolan can do' more than ! can; he will do all he can with him.’ On Monday the horse showed no change. Doctor Rolan at no stage of the game thought there was any serious trouble with the horse, that is up to within three or four hours of his death. The horse became slowly worse and on Wednesday, I think it was, the horse died. We reported that fact.

Sometime after that I went in to see Mr. Rice. I told Mr. Rice that I did not think technically I owed him a penny, hut on a moral ground-.” ²⁸⁰ The testimony of the defendant as to the sale of the horse was as follows: Mr. Dinsmore said when he came to- the stahles on Thursday: “I would like to look at the horse that Doctor Rolan picked out.” I went to the door and I hollered to the colored man to bring out the horse that Doctor Rolan