Brier v. Mankey

Decision Date25 January 1911
Docket NumberNo. 6,893.,6,893.
Citation47 Ind.App. 7,93 N.E. 672
PartiesBRIER v. MANKEY.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Warren County; James F. Sanderson, Judge.

Action by Solon Brier against John Mankey. From a judgment for defendant, plaintiff appeals. Reversed and remanded.Chas. R. Milford, for appellant. McCabe & McCabe, for appellee.

MYERS, C. J.

Appellant brought this action against the appellee to recover alleged damages sustained on account of the purchase of two mules at a public sale held by the appellee. The complaint was in three paragraphs, to each of which a demurrer for want of facts was sustained, and judgment was rendered in favor of appellee and against appellant for costs. The ruling of the court in sustaining a demurrer to each of said paragraphs is assigned as error.

Appellee first insists that appellant's exception to the ruling on demurrers was joint, and therefore if either paragraph of the complaint was insufficient, the judgment must be affirmed, citing Shryer v. Louisville, etc., Traction Co., 35 Ind. App. 641, 74 N. E. 902. But since the ruling in that case, which was expressly made to rest upon the ruling theretofore made by the Supreme Court in two cases, which cases have since been disapproved in Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524, and Honey v. Guillaume, 172 Ind. 552, 88 N. E. 937, the case of Shryer v. Louisville, etc., Traction Co., supra, is no longer precedent, and on that point it is now overruled. The record shows, “and the court being duly advised in the premises, does now sustain the demurrers to each of the first, second, and third paragraphs of plaintiff's complaint, to which ruling of the court plaintiff by counsel excepts.” The exception saved by the appellant in this case must be regarded as an exception taken to the ruling of the court in sustaining a demurrer to each of the paragraphs. Bessler v. Laughlin, 168 Ind. 38, 79 N. E. 1033;City of Decatur v. McKean, 167 Ind. 249, 79 N. E. 982; Honey v. Guillaume, supra; Quick v. Templin, 42 Ind. App. 151, 85 N. E. 121;United States Cement Co. v. Koch, 42 Ind. App. 251, 85 N. E. 490;Johnson County Sav. Bank v. Kramer, 42 Ind. App. 548, 86 N. E. 84. Appellee has presented us with a brief in support of the ruling of the court as to the first paragraph of the complaint, but has made no reference to the ruling of the court as to the other paragraphs. For this omission on the part of appellee, we would be authorized to reverse the judgment “without prejudice to either party.” Miller v. Julian, 163 Ind. 582, 72 N. E. 588;People's Nat. Bank v. State, 159 Ind. 353, 65 N. E. 6. Assuming that appellee acted in good faith in briefing the case upon the theory of a joint exception, and to reverse a judgment for the failure of appellee to file a brief is a matter within the discretion of the court (Cobe, Receiver, v. Malloy, 44 Ind. App. 8, 88 N. E. 620;Wysong v. Sells, 44 Ind. App. 238, 88 N. E. 954), and as the record is but 14 pages in length, we have concluded to consider all of the paragraphs upon their merits.

In the first paragraph of the complaint, in substance, it appears that appellee in January, 1905, was the owner of certain personal property, including two mules, located in Warren county, Ind., which he advertised for sale at public auction on a certain day, and said sale was had on that day; that prior to said sale he gave notice thereof in the newspapers published in said county, and by posters, wherein it stated that said mules were eight years of age, when, in fact, they were respectively of the ages of 11 and 12 years; that at the direction of the appellee said sale was in charge of his son, who had full charge of the same, and full power to manage and control the same as he deemed best, and to make such terms and conditions with the purchasers as he deemed best regarding the animals and property so sold; that appellant attended said sale, and that the defendant by his said agent, the latter having full authority so to do, warranted and represented to the appellant that each of said mules was only eight years of age; that appellant was ignorant of the true age of said mules, and had no opportunity to then and there examine them and determine the fact as to their age for himself, but believing said statements to be true, relied upon the same, and was thereby induced to and did bid for said animals, and purchased them at and for the price of $295; that said agent's statement regarding the age of said mules was not true, and that he knew it was not true, and that he made the same for the purpose of deceiving the appellant as to their true age; and “that at that time said mules were not worth said $295, but that because of the difference in age alone they were not worth to exceed $195 at the time they were purchased as aforesaid by the plaintiff of defendant; that appellant by reason of the premises was damaged in the sum of $100, for which he demands judgment.

In the second paragraph the same facts appear as in the first, with the addition that the 12-year old mule was blind in one eye and lame in one fore foot, and that the 11-year old mule was stringhalted in one hind leg; and “that at said sale the defendant, by said agent, who was then and there acting in the line and scope of his agency, caused said mules to be handled, driven, led, walked, and made to run in such a manner as to cause the true condition of the animals to be concealed and the defendant, by said agent, also caused certain tricks, deceptions, and artifice to be used, the nature of which the plaintiff does not know and is therefore unable to describe, but which are known to said agent,” and which were thus employed for the purpose of deceiving the bidders for said mules at said sale including this appellant; that appellant was deceived thereby as to the true condition of said animals, and caused to believe them to be sound and in good condition and free from lameness, blindness, and the defect of stringhalt; that the appellant did not know of any of said defects prior to his purchase of said mules, nor was he aware of any of the tricks or deceptions employed by the appellee through his said agent; “that said mules, by reason of the defects as above described and because of their age being greater than as represented and warranted, were then and there worth less than said price as paid for them by plaintiff in the sum of $140, wherefore plaintiff has been damaged,” etc.

The third paragraph sets up practically the same facts as are exhibited in the first and second paragraphs, but with more care in its preparation. In addition it is alleged “that said defects in said animals of blindness, lameness, and the disease of stringhalt were not patent and could not be discovered except by close, careful, and thorough inspection and trial of said animals, by persons skilled in buying horses and mules and having a thorough knowledge of a manner and method of detecting defects and diseases in them.” Appellant denies any knowledge of such defects and alleges that he was deceived by...

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