Beeman v. Buck

• Decision Date: 01 January 1830
• Citation: Beeman v. Buck, 3 Vt. 53 (Vt. 1830)
• Parties: JOSEPH BEEMAN v. ZADOCK BUCK
• Court: Vermont Supreme Court

3 Vt. 53

JOSEPH BEEMAN v. ZADOCK BUCK

Supreme Court of Vermont, Franklin

January, 1830

[Syllabus Material]

This was an action on the case for selling and warranting to the plaintiff a certain mare as sound, but which was unsound and diseased, and that known to the defendant at the time of the sale. The declaration was as follows:

" Zadock Buck is attached to answer unto Joseph Beeman of Fairfax in a plea that the said Joseph Beeman, on the 26th day of August, 1826, at Fairfax, aforesaid, bargained with the said Zadock Buck to buy of said Zadock a certain bay mare; and the said Zadock Buck, well knowing the same bay mare to be unsound, and infected with certain distempers such as the yellow-water, consumption, & c. by then and there warranting the said bay mare to be sound, and free from any distemper whatever, then and there deceitfully sold the said mare to the said Joseph Beeman for the sum of thirty five dollars: which said bay mare, at the time of the sale, was unsound, and infected with yellow-water and consumption; of which disease the said mare died. And so the said Zadock falsely and fraudulently deceived said Joseph."

Plea not guilty.

At the trial in the county court, PRENTISS, J. presiding, the plaintiff, to support the issue on his part, proved that in August, 1826, he bargained with the defendant to buy the mare mentioned in the declaration, at such price as should be put upon her by certain men agreed upon by the parties to appraise her value; that the appraisers examined the mare and one of them asked the defendant what made her so poor, and if they should appraise her as sound? To which the defendant replied, that she had been kept in a dry pasture, and was well, as far as he knew, and they might appraise her as sound. Another witness proved that the defendant said the mare was well, and that he directed the appraisers to appraise her as a well mare; that the appraisers accordingly considered the mare as sound, and appraised her at the sum of thirty five dollars; which sum the plaintiff paid the defendant, and the mare was thereupon delivered to the plaintiff. The plaintiff also proved that the mare died in December, 1826, with the disease called the yellow-water; and gave evidence tending to prove that the disease with which the mare died was upon her at the time the defendant sold her to him. The defendant on his part proved that he purchased the mare about two weeks before he sold her to the plaintiff; that he bought her as sound, and paid the sum of thirty five dollars for her; and gave evidence tending to prove that before and at the time of the sale to the plaintiff, the mare was sound, and that the disease of which she died originated after the sale, and was produced by the hard service to which she was put by the plaintiff and others. The counsel for the plaintiff contended, that the evidence given showed a warranty on the part of the defendant, that the mare was sound; and further, that the jury, from a consideration of the time the defendant had owned the mare, and her appearance before and at the time of the sale, ought to find that the defendant knew the mare was diseased; and the counsel requested the court to charge the jury, that if they found the mare was unsound at the time of the sale, and that the defendant knew it, or warranted her to be sound, the plaintiff was entitled to recover. The counsel for the defendant insisted, that unless the jury found the mare was unsound at the time of the sale, and also that the defendant knew it, and was thus guilty of a fraud, the plaintiff was not entitled to recover; --that proof of a warranty would not support the declaration; but if it would, there was no evidence of a warranty; and requested the court so to charge the jury. The court instructed the jury, That if the mare was diseased at the time of the sale, as alleged, and there was either fraud in the sale, or a warranty, the plaintiff would be entitled to recover--That to constitute fraud, it must appear the defendant, at the time of the sale, knew the mare was thus diseased, of which fact the court saw no evidence in the case; and if the jury were of the same opinion, the plaintiff could not recover, unless they found an express warranty--That no particular form of words was necessary to constitute a warranty; but a mere expression of judgement and opinion would not amount to a warranty; and the jury would say whether the affirmation, proved to have been made by the defendant, " that the mare was well and sound," coupled with the direction given by him to the appraisers, " to appraise her as sound," was an expression of his belief and opinion, only, of her soundness, or was intended, and understood by the parties, and was made and received as an engagement on the part of the defendant, that the mare was sound. In the latter case, it would amount to a warranty, and the plaintiff would be entitled to recover, if the jury were of opinion, from the evidence, that the disease of which the mare died existed in her constitution at the time of the sale although it presented no decisive or unequivocal appearances until some time afterwards. The jury returned a verdict for the plaintiff. A bill of exceptions having been allowed stating the foregoing facts, the cause on motion of the defendant's counsel, was removed to this Court; and the question now was whether the county court erred in their directions to the jury.

Argument for the defendant.--It is contended on the part of the defendant, that in this action the scienter, or knowledge of the defendant at the time of the sale of the unsoundness of the mare, is the gist of the action, and that although the jury might find that the defendant sold the mare, and warranted her sound to the plaintiff, yet, unless they also found, that the defendant knew she was unsound at the time of the sale, he would not be entitled to recover in this form of action. Farnsworth v. Wright, decided by the Supreme Court, January T. 1828, in Franklin County.

Argument for the plaintiff.--We contend that the charge of the county court was legal. The ground of the action is deceit, which in regard to the defendant, may be actual or constructive; --actual, in case he knew of the unsoundness, and constructive, if he gave a warranty not knowing whether the mare was sound or not; for the consequences to the plaintiff are the same, and he is equally deceived in either case. That case is a proper action upon the warranty is shown by all the authorities, and that in such action, the warranty alone, without proof of the scienter, will entitle the party to recover, is fully established by Williamson v. Allison, 2 East, 446. And we insist, that as the ground of action is deceit, the plaintiff must recover on proof of actual fraud without a warranty; for the warranty is only alleged as one of the means by which the deceit was effected, and does not control the operation of the other means alleged, though it is the only one from which a legal presumption of deceit will be made without proof of the scienter. The latter question does not necessarily arise in this case, since it cannot be supposed that the jury gave their verdict upon the ground of fraud without a warranty. There are, therefore, but two questions in the case; whether the declarations of the defendant and the mode of appraisal were proper evidence to go to the jury in proof of the warranty, and whether the warranty, without actual fraud, entitled the plaintiff...