Faris v. Lewis

• Decision Date: 24 May 1842
• Citation: 41 Ky. 375
• Parties: Faris <I>vs</I> Lewis.
• Court: Kentucky Court of Appeals

41 Ky. 375

Faris vs Lewis.

Court of Appeals of Kentucky.

May 24, 1842.

APPEAL FROM THE WASHINGTON CIRCUIT.

CHIEF JUSTICE ROBERTSON delivered the Opinion of the Court.

IN an action on the case, for both general and special damages, resulting, as averred, from the fraudulent sale by the defendant to the plaintiff, of a glandered horse, verdict and judgment were rendered for $127 50, equal to about the value of the horse sold and of that of two other horses of the plaintiff, which died of glanders communicated by that horse, after his purchase of it, and also the legal interest on the aggregate of those values. And the first and principal question for revision is, whether, admitting the fraud which seems to have been sufficiently proved, the loss of the plaintiff's other horses was such a natural and proximate consequence of the sale and delivery to him of a horse known by the vendor to be afflicted with a contagious disease, as authorized a recovery for that special damage.

It seems that the parties resided in the same county, and that the plaintiff purchased the horse for use on his farm. The communication of the contagion to other horses with which the distempered horse must have been expected to be associated in domestic use, until the purchaser had become apprised of the existence and true character of the distemper, should be presumed to have been known by the fraudulent vendor, to be a probable and natural consequence of his sale of such a horse to such a man, and for such use; and consequently, the special damage which did so result to the purchaser, should be considered as wantonly inflicted by the vendor's fraud, and of course should be deemed in law, as well as in fact, an injury for which damages might be recovered as certainly as they could have been had the vendor directly inoculated the vendee's other horses, instead of doing it indirectly, through the instrumentality of the diseased horse, which he fraudulently sold to him.

The true principle of the common, as well as of the civil law, is thus illustrated by Pothier: "If a person sells "me a cow, which he knows to be infected with a contagious "distemper, and conceals this disease from me, "such concealment is a fraud on his part, which renders "him responsible for the damage that I suffer, not only "in that particular cow which is the object of his original "obligation, but also in my other cattle, to which the distemper "is communicated, for it is a fraud of the seller "which occasions this damage."

This principle has been frequently recognized in England and the States of our union: See Nurse vs Barnes, (T. Raymond, 77;) Mainwaring vs Brandon, (8 Taunton, 202;) Borradaile vs Brunton, (Ib. 535;) Neale vs Miller, (3 B. & Cr. 533;) Jeffrey vs Bigelow et al. (13 Wendell, 518.)

In Nurse vs Barnes, a lessee of a mill, who was not permitted by the lessor to...