On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. UNN-L-280-99.
Before Judges Baime, Newman and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 12, 2001
Plaintiffs, Richie & Pat Bonvie Stables, Inc. and Ralph Pocaro, appeal from an order entered on October 13, 2000, granting summary judgment in favor of defendants, Donald Irving and George Harp, dismissing their complaint.
Plaintiffs' complaint against defendants arose from their November 6, 1998 purchase of a horse named Kid Glory at an auction in Hanover, Pennsylvania conducted by Standardbred Horse Sales Company for the sum of $35,000; the horse was owned by defendants.
Defendants are professional breeders of standardbred racehorses (trotters) in Florida. Plaintiffs have been involved in racing for many years in New Jersey and have purchased several horses from defendants in the past.
Defendants, through their consignor Fox Den Farm, offered Kid Glory for sale at the 60th Annual Auction conducted by Standardbred Horse Sales Company in Harrisburg, Pennsylvania. Prior to the auction, in the Fall of 1998, Irving suggested that plaintiffs consider purchasing Kid Glory at the upcoming auction. Plaintiffs contend Irving represented to them that Kid Glory had never received any injections or had any problems, and that the horse was "100%."
At his deposition, Irving admitted he advised plaintiff that Kid Glory "hadn't been injected from ear to asshole all summer." However, Irving maintained "[t]hat don't mean he never had one shot. He might have had one." Irving denied that he made any representations regarding prior surgeries, stating that plaintiffs never asked if Kid Glory had undergone any operations.
Prior to his purchase by plaintiffs, Kid Glory had raced extensively in Florida, was among the top three finishers in ten of his fifteen races as a two-year-old and had earned $29,194.
Prior to their purchase of Kid Glory, plaintiffs were aware that no latent defect disclosure concerning Kid Glory had been made by Fox Den Farm pursuant to the following disclosure obligation imposed on defendants' consignor by Standardbred Horse Sales Company:
If you are aware of a latent defect such as a broken bone, [ossified calcium deposits], chronic illnesses, etc. or if any unusual treatment such as surgery has been performed on any of the horses, we require that you advise us so that this may be announced. In the event that this becomes an issue in contention, Standardbred Horse Sales Company will not guarantee payment until such time as payment has been received by Standardbred Horse Sales Company. [Emphasis added.]
At the beginning of the auction, plaintiffs were furnished with a catalog of the horses, containing a "NOTICE TO BIDDERS," "TERMS AND CONDITIONS OF SALE" form, which stated, in pertinent part:
The horses described in this catalog are presented for sale by Standardbred Horse Sales Company (the "Company" or "Standardbred") as agent on behalf of the consignors thereof on the following terms and conditions. Making a bid evidences your acceptance of and agreement to these terms and conditions:
ALL HORSES ARE SOLD AS IS. IF YOU DO NOT AGREE TO THAT ESSENTIAL RULE, PLEASE DO NOT BID ON ANY HORSES. The buying and selling of horses inevitably involves substantial risk. AS A BIDDER, YOU AGREE TO ACCEPT THAT RISK. THE COMPANY ACCEPTS NONE OF THAT RISK. IF YOU CANNOT ABIDE BY THESE RULES, PLEASE DO NOT BUY ANY HORSES AT THIS SALE.
Immediately after a horse is struck down, the purchaser should examine it. If any condition, alleged warranty or representation is challenged, the matter must immediately be reported to the sales manager who shall have the sole right of appointing a person to make examination to determine whether any such condition, alleged representation or warranty has been breached. The decision of the referee so appointed (and no other) shall be binding upon both the consignor and the buyer. The Company shall incur no liability from either party due to such decision. Thereafter, (and in no ...