Bennett v. Gibson

• Decision Date: 30 June 1887
• Citation: Bennett v. Gibson, 55 Conn. 450, 12 A. 99 (Conn. 1887)
• Court: Connecticut Supreme Court
• Parties: BENNETT v. GIBSON.

12 A. 99

55 Conn. 450

BENNETT

v. GIBSON.

Supreme Court of Errors of Connecticut.

June Term, 1887.

C. S. Hamilton, for appellant.W. H. Law and D. Strouse, for appellee.

LOOMIS, J.This is a complaint for fraud in effecting an exchange of a horse belonging to the plaintiff for one belonging to the defendant.The plaintiff had a verdict in the court below, and the defendant appeals.Ten errors are assigned as reasons for the appeal, nearly all of which relate to the rulings of the court in the admission of evidence.

The evidence of the veterinary surgeon as to the nature and character of the disease which the defendant's horse had before and at the time of the trade; the question whether there were other diseases which would be attended with similar swellings on the head; the fact that the nature and fatal character of the disease were fully explained to the defendant just before the trade; the return of the horse by the plaintiff to the defendant immediately upon the discovery of the fraud, with the plaintiff's demand for the return of the money, and the horse which he let the defendant have,—were all so clearly relevant and proper as to render discussion unnecessary.

The fact that the surgeon, just after the trade, examined the horse for the plaintiff, and told him the same thing he had told the defendant shortly before the trade, was immaterial, except to show the continuance of the disease, and that the plaintiff returned the horse to the defendant immediately upon discovering the fraud, which facts do not seem to have been contested; for, when the defendant came to testify, he admitted that the trade was made between 11 and 12 o'clock, and the plaintiff returned the horse at about 1 o'clock following, on the same day.The plaintiff's testimony that he paid his lawyer $25 for conducting the suit, in connection with the further statement that his own horse was worth $30, and he paid the defendant $20 difference, did not, it would seem, harm the defendant in the result; for, after having both horses and the $20 in money, he was required by the verdict to pay the plaintiff only $30.But in disposing of the question on this ground, it may be implied that we consider the ruling erroneous, which we by no means concede.It is well settled that in actions of fraud, and to recover for flagrant wrongs in addition to the actual damages arising directly from the transaction, the jury may make the plaintiff good for the expenses of litigation which he was obliged to incur in order to obtain redress.Linsley v. Bushnell,15 Conn. 225;Ives v. Carter,24 Conn. 405;Welch v. Durand,36 Conn. 185.

Now, although it is not usual to introduce evidence to show specifically the amount of such expenses, yet, inasmuch as it is a legitimate element of damage, we do not see why relevant evidence is not as proper as in relation to any other item of damage, it being understood, of course, that it is discretionary with the jury to include this or not; but it seems to us that it cannot be erroneous to furnish the jury with some sure basis for such an addition, instead of leaving the whole matter to guess-work.

The only error respecting the admission of evidence which calls for a new trial is the exclusion of the plaintiff's reply to what the witness Driscoll stated to him respecting the horse he had of the defendant.The finding states the question as follows: The defendant introduced one Dennis J. Driscoll, as a witness, who testified to the conversation between the plaintiff and defendant at the time of the sale, and that he took the plaintiff one side, and told him, if this horse was all right, he would be worth $150 to $175, and if the horse was sound he could not expect to get him for the price.The defendant's counsel then asked the witness: "What did the plaintiff say in reply?"To this question...