Byard v. Harkrider
| Decision Date | 07 December 1886 |
| Docket Number | 11,910 |
| Citation | 9 N.E. 294,108 Ind. 376 |
| Parties | Byard v. Harkrider |
| Court | Indiana Supreme Court |
From the Newton Circuit Court.
The judgment is affirmed with costs.
J. T Brown, G. H. Stewart, D. E. Straight and U. Z. Wiley, for appellant.
M. H Walker, I. H. Phares and D. Fraser, for appellee.
The first error of which complaint is here made by appellant, the defendant below, is thus assigned upon the record of this cause: "The court erred in overruling the demurrers to the first and second paragraphs of the complaint."
Appellee's complaint herein contained three paragraphs. Appellant's assignment of error, however, only calls in question the sufficiency of the first and second paragraphs of the complaint. There was no demurrer below to the third paragraph of complaint, nor is its sufficiency challenged here by any assignment of error.
In the first paragraph of his complaint appellee alleged that on the 18th day of March, 1882, appellant sold appellee a black stallion, for which he paid appellant the sum of $ 500; that appellant falsely and fraudulently represented said horse to be a sure foal-getter, knowing the same not to be a sure foal-getter and well knowing, at the time said representations were made that said horse was utterly barren and incapable of getting colts; that appellee stood said horse for the year 1882, and advertised the same; that said horse was patronized extensively by the public, who put to him 94 mares, which mares were fruitful and were covered by said horse during the spring, summer and fall of 1882; that none of said mares became with foal by said horse; that said horse was utterly barren and unprolific at the time of said sale, and utterly incapable of getting any mares with foal; that appellee relied upon the statements and representations made by appellant, believing the same to be true; that the defects and reasons why said horse was so unprolific and barren were of such a character that they could not be detected by a person of ordinary prudence and skill, exercising ordinary care; that said horse was unsound, and for reasons unknown to appellee at the time of the sale, but well known to appellant, unprolific and barren; and that appellee had no means, at or before the time of said purchase, of ascertaining that said horse was so unprolific, but that said facts were well known to appellant, who concealed the same from appellee. Wherefore, etc.
The only objection urged by appellant's counsel in argument, to the first paragraph of complaint, is, "that it does not allege that the horse was purchased for breeding purposes." It is true, that the paragraph does not contain any direct allegation to that effect; but, taking all the facts stated therein together, we think the paragraph shows with certainty, sufficient to withstand appellant's demurrer thereto, that the horse was purchased by appellee for breeding purposes. Perhaps, if appellant had moved the court to have the paragraph made more specific on that point, it would have been error to have overruled such motion; but there was no error in overruling his demurrer to the paragraph of complaint.
The second paragraph of complaint is founded on the same transaction, and states substantially the same facts as are set forth in the first paragraph, but in different order and phraseology, and with this additional averment: That said horse was entirely useless to appellee, and of no value whatever, and appellee had expended large sums of money and incurred great pecuniary loss in keeping and taking care of said horse, and in hiring help in and about feeding and taking care of said horse, all in the sum of $ 1,000, for which he demanded judgment.
In discussing the alleged error of the court, in overruling the demurrer to the second paragraph of complaint, the only point made by appellant's counsel is, that the appellee, in the additional averment above set out, seeks to recover expenses incurred in caring for and keeping the horse, and that such expenses can not be recovered, in an action against the seller of personal property for false representations, or on a breach of warranty. If this were conceded to be true, precisely as counsel have stated it, yet such additional averment would not vitiate the second paragraph of complaint, which states a good cause of action, exclusive of such averment, and, therefore, the demurrer to such second paragraph was correctly overruled.
Under the alleged error of the court, in overruling appellant's motion for a new trial, appellant's counsel first complain of certain alleged errors of law, occurring at the trial, in overruling their objections to a certain question propounded by appellee to different witnesses, and in permitting each witness to answer such question. This question was substantially as follows: What did appellant and appellee do and say, at the office in appellee's stable when the notes were executed to appellant for the horse, in March, 1882? To this question, propounded, in substance, by appellee to a number of witnesses, appellant objected upon the general ground, in every instance, that the question was "incompetent, immaterial and irrelevant." Appellee's counsel earnestly insist that this objection to the...
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