Court v. Snyder

• Decision Date: 13 October 1891
• Citation: 2 Ind.App. 440,28 N.E. 718
• Parties: Court et al. v. Snyder.
• Court: Indiana Appellate Court

2 Ind.App. 440

28 N.E. 718

Court et al.

v.Snyder.

Appellate Court of Indiana.

Oct. 13, 1891.

Appeal from circuit court, Elkhart county; J. M. Vanfleet, Judge.

Action by Henry L. Snyder against David B. Court and others on a promissory note. Judgment for plaintiff. Defendants appeal. Affirmed.

John H. Baker and Francis E. Baker, for appellants. S. J. North and Wilson & Davis, for appellee.

REINHARD, J.

This was an action on a promissory note, brought by the appellee against the appellants. There was an answer in two paragraphs. The court sustained a demurrer to both paragraphs of the answer, and this ruling is assigned as error. The note was given as the purchase price of a mare. The answer attempts to set up what the appellants designateas an implied warranty, though we confess it appears to us more as an effort to plead an express warranty. The averments of the first paragraph of the answer are that the mare for which the note was given, and which constituted the only consideration for such note, was at and before the time of the sale thereof “sick and diseased, and had the seeds of an internal disease or malady, from which she died in about three months after said sale; that said disease or malady with which said mare was affected was latent, affecting her internal organs and functions, and the same was not discoverable by the utmost care and diligence, and these defendants did not know or suspect the existence of the same at the time of said purchase; that said plaintiff knew of the disease or malady with which said mare was affected before said mare was sold to these defendants, and he purposely concealed the existence thereof from these defendants in order to obtain a sound price for said mare; that the more effectually to sell said mare as sound, he procured and employed an acutioneer to sell said mare at public sale; that said auctioneer had full authority to sell said mare, and he was not instructed by said plaintiff not to warrant the soundness of said mare; that at the time said sale was progressing, and before the purchase was made, these defendants inquired of said auctioneer whether said mare was sound and free from disease, and they were informed by said auctioneer and by another employe of said plaintiff that said mare was sound and free from disease, which information they relied upon as true, and on the faith thereof they purchased said mare as sound and free from disease, and for the full value of said mare if she had been sound and free from disease,” etc. The second paragraph is in all essentials the same as the first.

Are the facts pleaded sufficient as an answer to the complaint? As a general rule, if there be no express warranty, the law does not imply one. In such cases the rule of caveat emptor is usually applied. This, we say, is the general rule, which is not, however, without its exceptions. One of the exceptions is in case of fraud. Says Parsons: “It becomes, therefore, important to know what the law means by fraud in this respect, and what it recognizes as such fraud as will prevent the application of the general rule. * * * The weight of authority requires that this should be active fraud. The common law does not oblige a seller to disclose all that he knows which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may be silent and be safe; but if he be more than silent,-if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with warranty, or otherwise preventing his examination or inquiry, this becomes a fraud of which the law will take cognizance. * * * The seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself.” 1 Pars. Cont. 578. The rule is that, where the sale is an executed one, the buyer takes the thing sold with all the defects, if there be neither warranty nor fraud; and the decided weight of authority is also to the effect that a sale for a sound price implies no warranty. Id. 584, and note r. See, also, Postel v. Oard, 1 Ind. App. 252, 27 N. E. Rep. 584; ...