Brief Fact Summary.
Tribe (Plaintiff) bought his first horse from the Petersons (Defendants), responding to a sale brochure and their assertion that he was a gentle horse. The Plaintiff was thrown off the first time he rode the horse, shattering his wrist, and sued for breach of express warranty that the horse would not buck.
Synopsis of Rule of Law.
In order for an express warranty to exist, there must be some positive and unequivocal statement concerning the thing sold which is relied on by the buyer and which is understood to be an assertion concerning the item sold and not merely an opinion.
We hold that it is improper to review the denial of a motion for summary judgment following a trial on the merits.View Full Point of Law
The horse had been gentle with previous riders and was in good health at the time he was sold. The brochure announced the horse as “extra gentle” and “overly kind,” and the Defendants told the Plaintiff the same thing before he purchased the horse.
After being thrown off and injured, the Plaintiff alleged the Defendants had breached an express warranty that the horse would never buck, and that they fraudulently and negligently misrepresented the horse’s nature.
The trial court dismissed the Plaintiff’s motion for summary judgment, and the jury found for the Defendants on all claims.
Was there an express warranty that the horse would never buck?
· The testimony of witnesses revealed that the horse was gentle, as the brochure said, with all riders except the Plaintiff.
· After the sale, Mrs. Tribe telephoned the Defendants and said she was getting along well with the horse and loved him.
Evidence showed the disposition of a horse may be affected by the rider; and even gentle horses may sometimes buck.
The Plaintiff claimed an express warranty was made, and the Defendants denied ever making such a warranty. An express warranty cannot be based upon an assertion of opinion. They jury reached a reasonable result in finding no express warranty was made.