Dowling v. Lawrence
| Decision Date | 25 September 1883 |
| Citation | 16 N.W. 552,58 Wis. 282 |
| Court | Wisconsin Supreme Court |
| Parties | DOWLING v. LAWRENCE. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Crawford county.Brooks & Dutcher, for respondent, William R. Dowling.
Thomas & Fuller and John D. Wilson, for appellant, Daniel R. Lawrence.
One defense stated in the answer was that the cattle in controversy were obtained of the defendant on the exchange of a horse for them; that at the time of such exchange the plaintiff warranted the horse to be sound, whereas, in fact, the horse was blind, to the knowledge of the plaintiff when the trade was made; that immediately upon discovering the fraud practiced upon him by the plaintiff, and on the day of the exchange, the defendant returned the horse to the plaintiff and took possession of the cattle.
On the trial the plaintiff was sworn, and denied that he made any general warranty as to the soundness of the horse; denied that the horse was blind while he owned him, or that he knew that he was blind. The defendant in his testimony directly contradicted the plaintiff on these material points. Also to sustain this defense he called on his part, among other witnesses, A. D. Alderman, who in effect testified that he, with one Gibbs, went to see the horse while the plaintiff owned him, and that they talked some with the plaintiff about trading for the animal. In the conversation the plaintiff said he did not care about trading then; that the horse had hurt one of his eyes, and that he would not talk about a trade until the horse's eye had got all right.” The witness said that he and Gibbs went into the barn, looked at the horse, and discovered that his eyes were not right. The witness was then asked what Gibbs said to the plaintiff about the horse being blind. The question was objected to by the plaintiff, and the objection was sustained.
The learned circuit court observed that what somebody else had said in the presence of the plaintiff about the horse being blind was not competent evidence unless the plaintiff was trying to sell the horse at the time to the defendant. It seems very clear that the learned circuit judge erred in this ruling, and must have entirely misapprehended the effect of the proposed testimony. Of course it tended to discredit the plaintiff's statements that he did not know that the horse was blind before he traded with the defendant. His knowledge as to the condition of the horse's eye was a material fact. It is true, the plaintiff had testified that he did not warrant the horse's eyes, or did not warrant him at all, except as to the bunch on his breast. So also he testified positively that the horse was not blind while he owned him. Now if Gibbs actually told the plaintiff when he examined the horse that he was blind, or he thought he was blind, would not this testimony tend to prove that the plaintiff had knowledge of the fact--if, indeed, it was a fact--when he made the trade? It is also evident that the proposed testimony had a bearing on the question of fraud. The contention of the defendant was that the plaintiff had been guilty of such a fraudulent concealment of...
To continue reading
Request your trial
-
Liland v. Tweto
...30 N.E. 551; Busch v. Wilcox, 46 N.W. 940; Hanson v. Edgerly, 9 Foster, 343, 359; Englehardt v. Clanton, (Ala.), 3 So., 680; Dowling v. Lawrence, 16 N.W. 552; Downing v. Dearborn, 1 A., 407; Mallory Leach, 35 Vt. 156; 2 Kent's Com. 482; I Story's Eq. Jur., Sec. 208-216; Pomeroy Eq. Jus. Sec......
-
Acme Coal Co. v. Northrup National Bank
... ... is a fraud. (Hughes v. Robertson, 1 T. B. Mon. (Ky.) ... 215, 15 Am. Dec. 104; Dowling v. Lawrence, 16 N.W ... 552; Stevens v. Fuller, 8 N.H. 463; Paddock v ... Strobridge, 29 Vt. 470; Cardwell v. McClelland, ... 35 Tenn. 105; ... ...
-
Schauer v. Bodenheimer
...went to the substance of the consideration of the contract. The learned trial judge below in his opinion, relies upon Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552,Mannel v. Shafer, 135 Wis. 241, 115 N. W. 801, and Hoe v. Sanborn, 21 N. Y. 555, 78 Am. Dec. 163. In Dowling v. Lawrence, supr......
-
Hind v. Thomas
...the intentional nondisclosure of a latent defect by the seller may avoid a sale though there is no warranty. Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552; 26 Corpus Juris, 1074, 1075. The question is whether under the facts of this case it was the duty of the courts to set aside the verdi......