Davis & Co. v. Preston
| Decision Date | 21 December 1912 |
| Docket Number | 4,438. |
| Parties | DAVIS & CO. v. PRESTON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where one is induced to trade a mule for a horse upon the false and fraudulent representation of the owner that the horse is sound, when in fact the horse is unsound and worthless, no title to the mule passes; and the owner thereof can sue in trover for its recovery. If, in addition to the mule, the owner executes and delivers a note for an agreed sum of money, he can likewise recover the note in trover.
In such a case the plaintiff can elect to recover the value of the mule and have restitution of the note. The city court has no jurisdiction to decree the cancellation of the note, but so much of the verdict as provides for a restitution of the note is legal and valid; and a recital in the verdict that the note be properly canceled may be treated as surplusage.
Under the testimony of the plaintiff, the defendants were estopped to deny the agency of the person who traded the horse, and the evidence warranted a recovery in favor of the plaintiff. None of the assignments of error in the motion for a new trial are meritorious.
Error from City Court of Columbus; G. Y. Tigner, Judge.
Action by E. R. Preston against Davis & Co. Judgment for plaintiff and defendant brings error. Affirmed.
Wynn & Wohlwender, of Columbus, for plaintiff in error.
Hatcher & Hatcher, of Columbus, for defendant in error.
Preston sued Davis & Smith as partners. His petition was substantially as follows: The defendants have injured and damaged petitioner in the sum of $300 or other large amount. Plaintiff was the owner of a bay mare mule worth $100. He exchanged this mule with the agent of the defendants for a sorrel mare, and gave his note for $85 "to boot." At the time of the trade defendants' agent represented that the mare was a good worker to both the wagon and plough that she was sound, and would do the work of a good mule that she had been bred to a jack; and that she would "drop a colt" within a few months. Plaintiff noticed a scar on the shoulder of the mare, and inquired of the agent about it, and the agent replied that the scar was caused by a wire cut, but that it was well and did not injure the mare. A few days after the trade plaintiff tried to work the mare to a wagon, and discovered that she could not pull. He also tried her to a buggy, and found that she was lame in the right shoulder. Upon examination of the scar on her shoulder, he found that the mare was "fistulaed," and that she was wholly worthless. As soon as he discovered the condition of the mare, he notified the defendants that since she was not able to work he would return her, and later on he did return the mare, leaving her at the stable of one of the defendants. Plaintiff demanded of the defendants his mule and his note, electing to rescind the sale. Defendants refused to deliver the mule and the note to plaintiff, and the plaintiff claims title thereto and hire for the mule at the rate of $10 per month.
It is averred that the defendants falsely and fraudulently misrepresented the qualities of the mare; that they knew at the time of the trade that the mare was not sound, and would not work to either the wagon or plough; and that she had not been bred to a jack, and would not "drop a colt." They also knew that the scar on the mare's shoulder was not caused by a wire cut, and that the same was not well, but that it was a chronic fistula, rendering the mare worthless. It is averred that on account of the actual fraud thus committed no title to the note or mule passed to the defendants; that the trade was made solely upon the false and fraudulent representations made by the defendants' agent, who at the time knew that the representations were false. There was a prayer for ordinary process, and bail process was also attached to the petition. The defendants were served and gave bond as required by statute in bail trover cases. There was no demurrer to the petition, but the defendants answered, averring that they did not own the mare which had been traded to the plaintiff; that the person who made the trade was not their agent; and that they had no connection with the transaction.
At the trial the plaintiff testified to the material allegations in his petition. It further appeared from his testimony that the next day after...
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