Burnham v. Sherwood

• Citation: 14 A. 715,56 Conn. 229
• Parties: BURNHAM v. SHERWOOD.
• Decision Date: 31 March 1888
• Court: Supreme Court of Connecticut

14 A. 715

56 Conn. 229

BURNHAM

v. SHERWOOD.

Supreme Court of Errors of Connecticut.

March Term, 1888.

Action by Sigourney M. Burnham against Arthur Sherwood upon a warranty in the sale of a mare. Judgment for defendant, and plaintiff appeals.

Stoddard, Bishop & Haviland, for appellant. E. W. Seymour, for appellee.

PARDEE, J. On May 2, 1887, the defendant sold a mare to the plaintiff for $600, and the present action is brought upon a warranty of the mare in sale. The second paragraph in the third count in the complaint is as follows: "The defendant, to induce the plaintiff to so buy said mare, and pay him said sum therefor, declared to the plaintiff that said mare was sound and right in every particular, and free from all blemishes, so far he, the defendant, knew; and was a suitable horse for a lady to drive, and very fast, and had, when three years old, trotted a mile in two minutes and forty-eight seconds on his (the defendant's) track." The second paragraph in the defendant's answer to the foregoing is as follows: "The defendant admits that he said to the plaintiff that the mare was sound and right in every particular, and free from blemish as far as he (the defendant) knew; that she was a suitable horse for a lady to drive; and that she had trotted on the defendant's track in two minutes and forty-eight seconds." The rest of paragraph 2 is denied. It appears by the finding that no evidence was offered of any other warranty.

The plaintiff complains of the omission of the court to charge in accordance with his fifth and sixth requests. The first of these is as follows: "That if, by any artifice, representation, or concealment, Sherwood intentionally led Burnham to believe that the mare was sound and right in every particular, and thereby to purchase her, when in fact said mare was not sound and right in every particular, then the plaintiff was entitled to recover damages in this action." And the other is as follows: "That if Sherwood, at the time of the sale, informed Burnham that the mare was sound and right in every particular so far as he knew, believing that Burnham would rely upon that statement in making the purchase, and intending to have him believe that said mare was sound and right in every particular, and therefore to purchase her, and Burnham thereupon, by reason of said statement, believed the mare was sound and right in every particular, and did in consequence purchase her, and pay for her the sum of six hundred dollars, that that constituted a warranty that the mare was sound and right in every particular, and that if such warranty was made and was untrue, and said mare was not sound and right in every particular, then said warranty was broken, and the plaintiff could recover damages in this action." The court had already charged the jury as to what constituted a warranty in such a case, and in a manner which must have been satisfactory to the plaintiff, as the judge adopted in full his own request upon the subject. But the case is taken out of the ordinary definitions of warranty in such a case by the qualification that the horse was sound so far as he (the defendant) knew. That this was the exact form of the warranty is clear. It appears by the finding that the plaintiff testified to the representation of the defendant as in that form, and that "the plaintiff offered evidence of no other warranty." And the judge said in his charge to the jury that "there seemed to be no dispute whatever, from the testimony of both parties, but that the warranty was that the horse was sound and right in every particular so far as the defendant knew." The whole case was therefore affected by this qualification of the warranty, and the judge very properly charged the jury that "to prove a breach of the warranty that the horse was sound and right in every particular, so far as the defendant knew, required, not only proof of the existence of the claimed disease or defect, but of the defendant's knowledge of its existence."

To meet this stress of his case the plaintiff now claims that the court...