Cameron v. Mount

• Decision Date: 28 November 1893
• Citation: 56 N.W. 1094,86 Wis. 477
• Parties: CAMERON v. MOUNT.
• Court: Wisconsin Supreme Court

86 Wis. 477

56 N.W. 1094

CAMERON

v.MOUNT.

Supreme Court of Wisconsin.

Nov. 28, 1893.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action by Ettie C. Cameron against E. P. Mount to recover damages for personal injuries. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. Reversed.Ryan & Merton, for appellant.

Warham Parks, for respondent.

ORTON, J.

The complaint states the following case: The plaintiff's husband, Claude N. Cameron, wished to buy a kind and gentle road horse for his wife to drive. The defendant called upon the said Claude N. Cameron, and told him that he had been informed he wished to buy a horse for his wife, and that he had with him a kind, gentle, and safe horse, to sell; whereupon the said Claude called his wife, the plaintiff, to look at the horse, and she came and looked at him, and asked the defendant if the horse was kind and gentle, and free from any bad tricks and habits. The defendant then and there represented and warranted to the plaintiff that said horse was kind and gentle, and free from any tricks and bad habits, and that he was perfectly safe and well calculated for a lady to drive, and invited her to get in his buggy and drive the horse herself. The plaintiff, relying on said representations and warranty, got into the buggy to drive the horse, to try him, and, after driving a short distance, she attempted to turn around, and the horse made a sudden plunge, reared up, and kicked and upset the buggy, and the plaintiff was thrown violently to the ground, and permanently injured in her spine, and bruised and injured in other places on her body, to her damage of $3,000. In truth and fact the horse was an ugly, vicious, and tricky animal, and not a safe driving horse, and entirely unsuitable for a lady to drive or manage. On the trial of the action the facts stated in the complaint were substantially established by the testimony of the plaintiff and her witnesses, and the jury found a special verdict in her favor, and her damages at $3,000. The defendant made a motion for a new trial, based on several grounds, and especially on the ground that the complaint did not state a cause of action. The court granted the motion, but without stating any grounds therefor, and without terms. The plaintiff has appealed from this order.

The briefs and arguments of counsel on both sides go to the question of the sufficiency of the complaint, it not being alleged therein that the defendant knew at the time he made the said representation and warranty that they were untrue. There was no scienter alleged in the complaint. The learned counsel seem to be of the opinion that this deficiency of the complaint was the real ground for the granting of a new trial. The jury found specially that the defendant knew that the representations and warranty were false, but it is conceded that there was no evidence to sustain such a finding. The learned counsel of the appellant contend that this was not a good ground for ordering a new trial of the action, and, on the other hand, the learned counsel of the respondent contend that this reason was not only sufficient for ordering a new trial, but that the plaintiff cannot recover without such an averment and proof of a scienter. There seemed to be great doubt on the trial, as well as here whether the action is in tort or on contract. We are inclined to hold that such an avermentand proof are not necessary to sustain the action, and that the action is in tort. The representations and warranty set out in the complaint are not strictly and technically a “warranty,” as in sales of personal property. If they were, no one would contend that it would be necessary to prove that the defendant knew that the facts or conditions embraced therein did not exist or were not true, and the action would be on contract. On such a warranty the law is well settled; but, nevertheless, they do constitute a warranty of the facts and conditions embraced therein as effectually, and is an assurance and engagement just as positive and absolute, as a technical warranty. To sustain an action on such a warranty there is no more necessity of proof that the defendant knew that his statement was false than in the other case of a warranty. The action on a warranty in the sale of personal property is on contract. The action on a warranty relating to other matters or transactions is in tort, and the warranty is a constructive fraud, like a false representation. The learned counsel of the respondent contends that no warranty, as such, can exist except in relation to sales. To show that a warranty may exist in its strictness so far as to dispense with proof that the defendant knew its falsity with respect to other matters than sales, and to illustrate the principle, the case of Kuehn v. Wilson, 13 Wis. 104, may be referred to. The defendant, as a farrier, treated the plaintiff's colt, and “warranted the colt would get well and do well,” and it died within a...