Harris v. Mullins

• Decision Date: 30 June 1861
• Citation: 32 Ga. 704
• Parties: Richard Harris, plaintiff in error. vs. Parmelia Mullins, defendant in error.
• Court: Georgia Supreme Court

32 Ga. 704

Richard Harris, plaintiff in error. vs. Parmelia Mullins, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1861.

Action on the case, in Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1861.

This action was brought by Mrs. Parmelia L. Mullins, against Richard Harris, to recover the sum of $120 00, besides interest, paid by the plaintiff to the defendant, for a mule, which the defendant falsely and fraudulently represented to be perfectly sound and all right, but which was unsound, and died in a few hours after the sale.

The facts of the case, as disclosed by the testimony on the trial, are substantially as follows, to-wit:

The mule sold by the defendant to the plaintiff, once belonged to the Hon. Martin J. Crawford. Some time in January, 1860, Mr. Crawford's overseer informed him that the mule had had blind staggers, and had fallen down in the plow. Crawford had the mule brought to Columbus and traded it to Harris for what the parties estimated at $100 00, at the same time explaining to him what the overseer had said as to the condition of the mule, and also refusing to warrant the mule to be sound. About the middle of February, 1860, the plaintiff sent her son to Columbus to purchase a mule for her, and meeting with the defendant, who had the mule in controversy, he announced to him the purpose for which he had visited Columbus. Young Mullins examined the mule with a view of buying it. The defendant toldhim, and others in his presence, that the mule was a good work mule, and perfectly sound and all right, as far as he knew, and would suit his mother, and that he would sell the mule for $150 00. The mule seemed to be sound, but young Mullins did not then buy. The defendant told him that it was all right, that the mule would soon be put up to the highest bidder, at auction sale, and he could take a chance. In about an hour after this conversation, the mule was put up by a Mr. Ellis, an auctioneer, who stated that the mule was for sale to the highest bidder for cash; that the owner was closing out his stock, and that he would not warrant the mule in any particular; that the purchaser must take it at his own risk, and that there was to be no after-claps. Young Mullins, relying upon the representation made to him by Harris, bid off the mule at the price of $120 00, paid Ellis the money, and took the mule to a livery stable, where it was fed. The sale occurred about twelve o\'clock, and about four o\'clock in the evening young Mullins started home with the mule, and it died near the bridge, before he got out of town with it.

In addition to the foregoing, the defendant proved: That he also announced at the sale, that he would not warrant or guarantee further than that it was a mule, and had hair on; that the purchaser must take all risks, and that there must be no after-claps or law suits, after which statements Mullins bought the mule.

After the testimony had closed, the Court charged the jury, amongst other things:

" That although Harris and Ellis, when the mule was put up at auction, stated to the bidders, that they would not warrant or guarantee the mule in any particular, and that the purchaser purchased it at his own risk; yet, if the jury further believed that about an hour prior to the sale at auction, Harris represented the mule to Mullins to be sound, and all right as far as he knew, and Mullins acted on this representation in bidding for the mule, and that the mule was not then sound, and Harris knew it, that the plaintiff was entitled to recover."

The jury found for the plaintiff, and the plaintiff in error complains that the charge of the presiding Judge was erroneous, and asks a reversal of the judgment because of such error.

Johnson & Sloan, for plaintiff in error.

Ingram & Russell, for defendant in error.

By the Court.—Lyon, J., delivering the opinion.

This was an action brought by the plaintiff, Parmelia Mullins, against Richard Harris, for the recovery of the sum of $120 50, the amount paid by her to him for a certain mule that Harris falsely and fraudulently represented to be sound and all right, when, in fact, the mule was not sound, but was, at the time, afflicted with blind staggers, and had been for a long time before, which defendant knew at the time of his sale and representation, and that the mule died subsequently, and on the same day, of the disease.

On the trial, it appeared, from the evidence, that Mrs. Mullins sent her son to Columbus to buy a mule, and while there, Harris showed him this male, and tried to sell it to him at private sale, at the price of $150 00, when Harris told him that the mule was a good mule and would suit his mother, was all right and perfectly sound as far as he knew. The purchase was not then made, when Harris told him that the mule would be sold at...