The opinion of the court was delivered by: HANNUM
This civil action was instituted by the buyer of a standardbred race horse against the seller, to recover for breach of express warranties, an implied warranty of merchantability and an implied warranty of fitness for particular purpose. Having heard the testimony of witnesses for the plaintiff and for the defendants during a trial before the Court without a jury, and on the basis of the pleadings and exhibits of the parties, the Court enters the following Findings of Fact, Discussion and Conclusions of Law.
1. Plaintiff, Joseph Sessa, Jr. (Sessa) is a citizen of Pennsylvania.
2. Defendants Gene Riegle (Riegle), Mrs. Gene Riegle and Mrs. John A. Frantz are citizens of Ohio.
3. The amount in controversy exceeds the sum of $10,000, exclusive of interest and costs.
4. Sessa is employed as a beer distributor in Philadelphia, and as an avocation owns and races standardbred horses. In connection with his avocation, Sessa has bought, sold, valued, selected and generally dealt in standardbreds at various locations in the Eastern United States.
5. Riegle buys, sells, owns, trains, drives and deals in and with standardbred horses and engages in racing competition at various harness tracks in Ohio, Illinois and other parts of the country.
6. Sessa became interested in purchasing a standardbred race horse named Tarport Conaway owned by defendants, Mrs. Gene Riegle and Mrs. John A. Frantz after hearing about the horse and his record in February and March of 1973 from one Robert J. Maloney. Maloney had seen the horse at Riegle's farm in Greenville, Ohio.
7. At all times herein relevant, Riegle acted for himself and as agent for Mrs. Riegle and Mrs. Frantz in connection with the sale of Tarport Conaway.
9. Sessa also instructed his son, Richard Sessa, to obtain a veterinarian to go to Ohio to examine the horse. When he failed to do so, Sessa sent Maloney, a personal friend and knowledgeable horseman, to Ohio to complete the sale alone.
10. Sessa was relying chiefly on Maloney's judgment and evaluation in purchasing Tarport Conaway.
11. Maloney arrived in Ohio on Friday, March 9, 1973. On Saturday, March 10, 1973 he examined and jogged Tarport Conaway. His examination was not restricted in any way.
12. Maloney then telephoned Sessa from Riegle's house. He reported that he had jogged Tarport Conaway and "liked him."
13. Maloney then gave the telephone to Riegle who spoke to Sessa. In a short conversation he told Sessa that Sessa would like the horse, that he was a good one and that he was sound. They also discussed arrangements for transportation of the horse and the manner in which he could best be driven. Sessa indicated that he would send a van for transportation. Riegle then gave the phone back to Maloney.
14. After a brief conversation, the telephone call ended.
15. At some point just prior to or after the telephone call, Maloney delivered Sessa's check for the $25,000. purchase price to Riegle.
16. Later in the day, Sessa called Riegle to report that he was unable to obtain a van to ship the horse.
17. Riegle agreed to obtain a van on Sessa's behalf.
18. Tarport Conaway remained in Riegle's custody until March 23, 1973. During this interval he received proper care.
19. On March 23, 1973, Riegle placed the horse in the hands of an ICC approved carrier for shipment to plaintiff at Freehold Raceway in Freehold, New Jersey.
20. At 4:30 A.M., on March 24, 1973 Tarport Conaway arrived at Freehold Raceway.
21. At 8:00 A.M., that morning, Tarport Conaway was examined by Dr. S.P. Dey, D.V.M., and was found to have tendinitis (swelling of the tendons) in both front legs.
22. The cause of the tendinitis was not determined, however, it could have been caused by incidents during shipping.
23. After learning of the tendinitis, Sessa called Riegle, asked him to take the horse back and return the purchase price.
24. Riegle could not believe there was anything wrong with Tarport Conaway and said he would come to ...