Hill v. Snider
| Decision Date | 17 April 1940 |
| Docket Number | 378. |
| Citation | 8 S.E.2d 202,217 N.C. 437 |
| Parties | HILL v. SNIDER. |
| Court | North Carolina Supreme Court |
Civil action instituted in Superior Court for recovery of damages for alleged deceit and false warranty.
Plaintiff in his complaint alleges these facts briefly stated: That on May 11, 1938, plaintiff purchased a mare from defendant for the price of $125, on the representation of defendant, upon which he relied, that she was all right in every way; that said representation was false, and known by defendant to be false, in that there was something wrong with the eyes of the mare; that "as plaintiff is informed and believes, she was mooneyed and when she got in the condition that she could not see well, that she was blind and affected with something like fits,--would run and jump, and was unsafe and dangerous to work"; that plaintiff was deceived by said false representation; that said representation "was a warranty" on the part of defendant that said mare was all right, and that she was sound and her qualities were good; that there was a breach of warranty for that the mare was not all right and her qualities were not good in that her eye sight was bad at certain times, and when her eye sight became bad she was affected with nervousness to such degree that she almost had fits, and was unsafe and dangerous to work, and could not see where she was going; "that the plaintiff was deceived by the defendant as aforesaid, and the defendant warranted said horse"; that the mare is worthless and plaintiff is damaged in sum of $125.
Plaintiff further alleges that by reason of the wrongful acts of defendant, plaintiff has had to feed a worthless horse to his damage in the sum of $100.
Plaintiff therefore, prays judgment in sum of $225.
While defendant in his answer admits the sale of the mare to plaintiff at $125, he denies all other material allegations and pleads counterclaim of $25 balance due on purchase price of the mare.
It is recited in judgment below that when the case came on for hearing, defendant demurred ore tenus to both the alleged causes of action set forth in the complaint filed by the plaintiff on the ground that the second alleged cause of action does not state facts sufficient to constitute a cause of action, and that the Superior Court does not have jurisdiction in the first cause of action, in that the action is for an alleged breach of warranty and the amount sought to recover is less than $200. The court being of the opinion that the demurrer is well founded, sustained the same. Thereupon, plaintiff's action is dismissed, and, upon motion of plaintiff, the counterclaim of defendant is dismissed.
From the judgment dismissing his action, plaintiff appeals to Supreme Court and assigns error.
J. A Spence, of Asheboro, for plaintiff appellant.
J. V. Wilson, of Asheboro, for defendant appellee.
Counsel for appellant, in brief filed in this Court, states that: Considering the rulings of the court as set forth in judgment below, in the light of the pleadings, it is patent that the ruling with respect to failure to state facts sufficient to constitute a cause of action relates to allegations of fraud termed by the court "first alleged cause of action", and that as to lack of jurisdiction, relates to those bearing on breach of warranty referred to as "second alleged cause of action".
These questions then arise as determinative of this appeal:
(1) If the action be in tort for deceit or actionable fraud and false warranty, are the allegations of the complaint sufficient to constitute a...
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