Darling v. Stuart
| Decision Date | 28 July 1891 |
| Citation | 22 A. 634,63 Vt. 570 |
| Parties | HORACE G. DARLING v. STUART |
| Court | Vermont Supreme Court |
MAY TERM, 1891
Judgment affirmed.
Smith & Sloane and Alexander Dunnett, for the plaintiff.
Present ROSS, Ch. J., TAFT, MUNSON AND START, JJ.
The plaintiff purchased a horse of the defendant. He seeks to recover damages growing out of the purchase, on two grounds: First, that the defendant warranted the horse to be sound and kind, and secondly, that he fraudulently represented the horse to be sound and kind. He alleges that the horse was neither sound nor kind. The plaintiff excepted to the charge of the court, that "in order to entitle the plaintiff to recover on the ground of deceit the plaintiff must make it appear that the representations made by the defendant to him were false, and that the defendant knew them to be false." It is conceded that as applied to the facts of most cases this is an accurate and sufficient statement of the law governing this subject. The plaintiff's counsel made no requests to the court to charge, but one of his counsel argued the case to the jury upon the theory that if the defendant made the claimed statements about the horse, as of his own knowledge, and they turned out to be false in fact, the plaintiff was entitled to recover, even if the defendant did not know but that his statements were true. The charge of the court was full and specific on both features of the case, and upon the count declaring upon a warranty, fully adopted this theory of the plaintiff's counsel. The plaintiff now contends that it was error that the court did not also adopt and apply this theory to the count in deceit. The court charged the jury upon the count in warranty that if the defendant made the claimed representations or statements in regard to the characteristics and qualities of the horse as facts, and not as opinion, under such circumstances that the plaintiff had the right to, and did rely upon them as statements of facts it was a warranty that the horse had such qualities and characteristics, and he was bound to make his statements good, if false, even if he believed his statements true, and did not know of their falsity. The jury returned a verdict for the defendant. They must, therefore, have found that the plaintiff did not make the claimed statements and representations, as embodying facts, or that if he did make them as such, they were true. Hence, the plaintiff was given the full force and benefit of his theory upon one branch of the case, and the jury have found upon a careful, full and explicit charge, that his proof did not sustain his theory. Conceding that he had the right to a like charge in the count for deceit, it is manifest that he suffered no damage by the failure of the court to repeat it, on this count.
The plaintiff, to sustain the contention that he had the right to have the jury thus instructed on the count in deceit, relies upon Twitchell v. Bridge, 42 Vt. 68; Cabot v Christie, 42 Vt. 121; and Rowell v. Chase, 61 N.H. 135. As...
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