Faulkner v. Klamp

• Decision Date: 16 July 1884
• Citation: 20 N.W. 220,16 Neb. 174
• Parties: ROBERT FAULKNER, PLAINTIFF IN ERROR, v. ELLEN KLAMP, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 220

16 Neb. 174

ROBERT FAULKNER, PLAINTIFF IN ERROR, v. ELLEN KLAMP, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 16, 1884

ERROR to the district court for Lancaster county. Tried below before POUND, J.

AFFIRMED.

George H. Hastings and R. D. Stearns, for plaintiff in error, on rescission of contract cited: Barnett v. Stanton, 2 Ala. 181. Desha's v. Robinson, 17 Ark. 228. Chance v. Com's Clay Co., 5 Blackf., 441. Pettus v. Roberts, 6 Ala. 811. Buel v. Tate, 7 Blackf., 55. Calhoun v. Davis, 2 Ind. 532. Teter v. Hinders, 19 Ind. 93 and 128. Conner v Henderson, 15 Mass. 319. Vendee should have returned goods. 1 Parsons Cont., 593. See also Blackburn v Ostrander, 5 Neb. 222. Praise of article or affirmation of soundness when exposed for sale is not a warranty, unless so intended by the parties, and such intention must be proven. House v. Fort, 4 Blackf., 493. Duffer v Mason, 8 Conn. 25. Erwin v. Maxwell, 3 Murph., N.C. 241. Foster v. Caldwell, 18 Vt. 176. 5 Wait's Actions and Defenses, 562.

A. J. Sawyer and L. C. Burr, for defendant in error, cited: Jones v. Edwards, 1 Neb. 170. First National Bank v. Yocum, 11 Id., 329. Phillips v. Jones, 12 Id., 213. Little v. Woodworth, 8 Id., 281. Thurston v. Blanchard, 22 Pick. 18. Coghill v. Boring, 15 Cal. 218.

OPINION

REESE, J.

This action was instituted by the defendant in error for the recovery of the possession of a team of horses which she alleged was wrongfully detained by the plaintiff in error. The trial in the district court resulted in favor of the defendant in error, and the cause is brought into this court by the defendant below. The plaintiff and defendant traded teams. Faulkner, being the owner of a span of mules, exchanged them to Klamp for the horses in dispute in this action. One of the mules died, and Klamp offered to return the surviving one, and commenced this action claiming that Faulkner had perpetrated a fraud upon her in his representations as to the quality and condition of the mules.

A number of errors are assigned by the plaintiff in error, which we will briefly notice in their order:

1. It is claimed that the court erred in allowing two witnesses "to testify as to the condition, soundness, usefulness, etc., of the mules, no warranty or false representation having been proven or attempted to be proven." By an examination of the testimony as shown by the transcript it will be seen that the agent of the defendant in error, who made the trade, testifies that Faulkner represented them as true, good, and sound, and good pullers, that they were sound, healthy mules; that they were worth more than the horses "for hard work on the machine, and such like." The witness further testifies as follows: "He said just before, he would recommend them to be sound, healthy, hard workers, and good to eat and drink; if they were not I could return them." And again: "I told him I wanted to get a team heavy and stout enough to do work on the threshing machine. He said this was the team that could do it." The witness further testifies that in making the trade he relied upon those representations, that he took his word and told him he would take his word for it. Without further referring to the testimony upon this point we think enough was shown to lay the foundation for proof that these representations were false, which could be done by showing the condition of the mules immediately after the representations were made, and that the plaintiff in error knew them to be false when he made them. In this ruling of the court we perceive no error.

The second assignment of error is that the court erred in giving the following instruction asked by defendant in error: "If the jury believe from the evidence that defendant, in order to get possession of plaintiff's horses and money in exchange for his mules, made false and fraudulent representations as to the age, soundness, and ability to work of his mules, known by him to be false, and which false representations were relied upon by the plaintiff, and but for which she would not have made the trade; then the plaintiff did not, as against the defendant lose her title to the horses, and replevin will lie, provided said plaintiff did, upon discovery of the fraud and within a reasonable time thereafter, offer to return said property or as much thereof as was practicable, to the defendant." As we understand the position of plaintiff in error, the latter portion of this instruction is objected to for the reason that it permits the rescission of a contract obtained by fraud without the return of the property received, when it cannot be so returned. The rule contended for by the plaintiff in error that a contract cannot be rescinded without mutual consent unless the parties thereto can be placed in statu quo, and that a party cannot annul his contract until he restores what he has received under it and places the other party in interest in the same position he occupied previous to the contract, may be conceded to be the correct rule as generally stated; yet there are exceptions to this general rule, as, where the party to whom the return should be made has by his own act placed it out of the power of the parties seeking the rescission to make the return. 2 Parsons on Contracts, 680. 1 Denio 69. Wells on Replevin, § 331. Or where the property received by the defrauded party was worthless. 5 Wait's Actions and Defenses, 509. Wolf v. Dietzsch, 75 Ill. 205. The party aggrieved must do what he can to place the...