main known cause of a thrombosis in a horse's artery is the invasion of and attachment to the arterial walls of the third-stage larvae of the strongylus vulgaris worm, causing an irritation against which the horse reacts by deposition of fibrous tissue in an attempt to wall off the internal parasite. The fibrous tissue builds up inside the artery and ultimately forms a blockage.
There are, however, other known causes for thrombosis in a horse's artery. In addition, a thrombosis can arise without known cause.
34. Expert medical testimony did not establish that the thrombosis was present in Tarport Conaway on or before March 23, 1973.
35. On March 29, 1973, after receiving the report from Dr. Dey that Tarport Conaway had intermittent claudication in the hind limbs, Sessa again called Riegle and asked him to take the horse back and return the purchase money.
36. This Riegle refused to do.
37. There is no immediate cure for thrombosis of the iliac arteries in a horse. The disease is treatable by time and rest.
38. In general, a horse afflicted with a thrombosis of the iliac arteries is unable to race to the potential shown prior to the affliction.
39. In order to treat Tarport Conaway, Sessa sent him to a farm near Dover, Delaware to be turned out for one year.
40. After one year, the horse was put in training for five months but did not race.
41. Tarport Conaway was again turned out, first at Linden Creek Farm near Pittsburgh and then at Green Valley Training Center in Maryland.
42. Tarport Conaway was put back into training in March of 1975.
43. Between June 6, 1975 and December 29, 1975, the date of trial, Tarport Conaway raced 13 times, winning 3 races and earning a total of $1306.00.
44. Between March 24, 1973, the date of Tarport Conaway's arrival at Freehold, through December 29, 1975, the date of trial, Sessa incurred necessary expenses for the horse's transportation, maintenance, training and veterinary care in the amount of $9073.00.
45. Because of his excellent blood lines and early racing record, Tarport Conaway may have substantial value for breeding purposes.
As previously stated, this is an action to recover damages for breach of warranties on the sale of a three year old standardbred race horse. Plaintiff buyer contends that the defendant seller breached express warranties, an implied warranty to merchantability and an implied warranty of fitness for particular purpose.
I. Law Applicable to the Sale.
This case involved a sale of livestock to which Article 2 of the Uniform Commercial Code applies. See U.C.C. §§ 2-102, 2-105, 12A P.S. §§ 2-102, 2-105. By stipulation of the parties, the Uniform Commercial Code as adopted and interpreted in Pennsylvania, 12A P.S. § 1-101 et seq., will be applicable to this sale.
II. Express Warranties.
On March 10, 1973, the day of the sale of Tarport Conaway, Sessa and Riegle had a telephone conversation during which the horse was discussed in general terms. Arrangements were made for transportation, and Riegle gave Sessa some instructions for driving Tarport Conaway based on Riegle's experience with him. Sessa contends that certain statements made by Riegle during that conversation constitute express warranties on which Riegle is liable in this action. The most important of these is Riegle's alleged statement that, "the horse is sound," or words to that effect.
In deciding whether statements by a seller constitute express warranties, the Court must look to U.C.C. § 2-213
which presents three fundamental issues. First, the Court must determine whether the seller's statement constitutes an "affirmation of fact or promise" or "description of the goods" under § 2-313(1)(a) or (b) or whether it is rather "merely the seller's opinion or commendation of the goods" under § 2-313(2). Second, assuming the Court finds the language used susceptible to creation of a warranty, it must then be determined whether the statement was "part of the basis of the bargain." If it was, an express warranty exists and, as the third issue, the Court must determine whether the warranty was breached.
With respect to the first issue, the Court finds that in the circumstances of this case, words to the effect that "The horse is sound" spoken during the telephone conversation between Sessa and Riegle constitute an opinion or commendation rather than express warranty. This determination is a question for the trier of fact.
Gillette Dairy, Inc. v. Hydrotex Industries, Inc., 440 F.2d 969 (8th Cir. 1971); Brunner v. Jensen, 215 Kan. 416, 524 P.2d 1175 (1974). There is nothing talismanic or thaumaturgic about the use of the word "sound." Whether use of that language constitutes warranty, or mere opinion or commendation depends on the circumstances of the sale and the type of goods sold. While § 2-313 makes it clear that no specific words need be used and no specific intent need be present, not every statement by a seller is an express warranty.
Several older Pennsylvania cases dealing with horse sales show that similar statements as to soundness are not always similarly treated under warranty law. In Wilkinson v. Stettler, 46 Pa.Super. 407 (1911), the statement that a horse "was solid and sound and would work any place" was held not to constitute an express warranty. This result was followed in Walker v. Kirk, 72 Pa.Super. 534 (1919) which considered the statement, "This mare is sound and all right and a good worker double." Walker was decided after the passage of § 12 of the Uniform Sales Act,
the precursor of U.C.C. § 2-313 and thus presumably rests on the standard there established. The Official Comments to U.C.C. § 2-313 indicate that no changes in the law of warranties under Uniform Sales Act § 12 were intended.
However, in Flood v. Yeager, 52 Pa.Super. 637 (1912) an express warranty was found where the plaintiff informed the defendant that, "he did not know anything at all about a horse and that he did not want . . . the defendant to make a mean deal with him; whereupon the defendant said that the horse was solid and sound; that he would guarantee him to be solid and sound" 52 Pa.Super. at 638. While all three of these cases are premised partly on the now displaced rule that specific intent to warrant is a necessary concomitant of an express warranty,
they do show that statements of the same tenor receive varying treatment depending on the surrounding circumstances.
The results in these cases are all consistent with custom among horse traders as alluded to by Gene Riegle.
He testified that it is "not a common thing" to guarantee a horse, that he has never guaranteed a horse unless he had an "understanding" with the buyer and that he did not guarantee Tarport Conaway.
In other words, because horses are fragile creatures, susceptible to myriad maladies, detectable and undetectable, only where there is an "understanding"
that an ignorant buyer, is relying totally on a knowledgeable seller not "to make a mean deal," are statements as to soundness taken to be anything more than the seller's opinion or commendation.
The facts suggest no special "understanding" between Sessa and Riegle. Sessa was a knowledgeable buyer, having been involved with standardbreds for some years. Also, Sessa sent Maloney, an even more knowledgeable horseman, as his agent to inspect the horse.
Also militating against the finding of express warranty is the nature of the conversation between Sessa and Riegle. It seemed largely collateral to the sale rather than an essential part of it. Although Sessa testified that Riegle's "personal guarantee" given during the conversation was the quintessence of the sale, the credible evidence suggests otherwise. While on the telephone, Riegle made statements to the effect that "the horse is a good one" and "you will like him." These bland statements are obviously opinion or commendation, and the statement, "The horse is sound," falling within their penumbra takes on their character as such.
Under all the facts and circumstances of this case, it is clear to the Court that Riegle's statements were not of such a character as to give rise to express warranties under § 2-313(1) but were opinion or commendation under § 2-313(2).
Even assuming that Riegle's statements could be express warranties, it is not clear that they were "part of the basis of the bargain", the second requisite of § 2-313. This is essentially a reliance requirement and is inextricably intertwined with the initial determination as to whether given language may constitute an express warranty since affirmations, promises and descriptions tend to become part of the basis of the bargain. It was the intention of the drafters of the U.C.C. not to require a strong showing of reliance. In fact, they envisioned that all statements of the seller became part of the basis of the bargain unless clear affirmative proof is shown to the contrary. See Official Comments 3 and 8 to U.C.C. § 2-313, 12A P.S. § 2-313.
It is Sessa's contention that his conversation with Riegle was the principal factor inducing him to enter the bargain. He would have the Court believe that Maloney was merely a messenger to deliver the check. The evidence shows, however, that Sessa was relying primarily on Maloney to advise him in connection with the sale. Maloney testified that he had talked to Sessa about the horse on several occasions and expressed the opinion that he was convinced "beyond the shadow of a doubt" that he was a good buy. With respect to his authority to buy the horse he testified
"Well, Mr. Sessa said he had enough confidence and faith in me and my integrity and honesty that I, what I did say about the horse, I was representing the horse as he is or as he was, and that if the horse, in my estimation, was that type of a horse and at that given price, the fixed price of $25,000. he would buy the horse."