Hind v. Thomas

• Decision Date: 15 March 1922
• Citation: 187 N.W. 192,176 Wis. 379
• Parties: HIND v. THOMAS.
• Court: Wisconsin Supreme Court

176 Wis. 379

187 N.W. 192

HIND

v.THOMAS.

Supreme Court of Wisconsin.

March 14, 1922.

Dissenting Opinion, March 15, 1922.

Appeal from Circuit Court, Iowa County; L. H. Bancroft, Judge.

Action by Charles Hind against William Thomas. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover $147.50, the purchase price of a mare sold to defendant by plaintiff at a certain auction sale in Iowa county.

Defendant admitted that he bought the mare, but alleged that the sale was conditioned on a warranty that the horse was sound, and that in due time he rescinded the sale because the mare was spavined and attempted to return her, but was forced to keep her by plaintiff. By way of counterclaim, defendant alleged there was due him $122.75 for 14 months' care of the mare.

The auction was held on plaintiff's farm. After several horses had been sold, the mare in question was brought out. There was evidence tending to show that the bidding was very slow; that the auctioneer called upon plaintiff to say what was the matter with the animal; that thereupon plaintiff stated that the mare's legs were stocked, or swollen, by reason of her standing in the barn without exercise; that the swelling was due partly to a kick; and that her hock joints were slightly enlarged. Defendant's witnesses testified that when the auctioneer called on the plaintiff, he stated that the mare was all right; that the swollen legs “would come out all right”; and that there was nothing wrong with her. Plaintiff's witnesses stated that plaintiff guaranteed the mare as to her wind, “but not otherwise.”

It is undisputed that plaintiff was aware of the spavins. Defendant heard the auctioneer say that horses could be tried out on the farm, but that once taken on the road they belonged to the buyer. Two weeks after the sale, defendant took the mare to the farm of plaintiff, who refused to take her back.

Over the objection of defendant, plaintiff was allowed to introduce testimony tending to show that, had the mare been sound, her value would have been greatly in excess of the auction price; also, that shortly after the sale, plaintiff told defendant of a prospective purchaser who would pay the auction price for the mare. Plaintiff requested a finding as to whether defendant had an offer to sell the mare for the same price as he paid for her, which request was refused.

In a special verdict the jury found that plaintiff did not represent the mare to be all right; that defendant relied on no such representation; and that the fair compensation for the care of the mare was $119. Judgment was entered in favor of plaintiff for the amount of his claim, and the counterclaim was dismissed.

From this judgment defendant appealed.

Eschweiler, J., dissenting.

Kopp & Brunckhorst, of Platteville, for appellant.

Fiedler, Fiedler & Jackson, of Mineral Point, for respondent.

JONES, J. (after stating the facts as above).

[1] The nature of the defense relied on by defendant is found in the following allegation of the answer:

“That at said sale when the horse in question was on the block, the auctioneer, plaintiff's agent, represented and warranted that while the said animal had swollen legs, they were entirely from nonuse, and that anybody purchasing was safe in so doing, that the owner guaranteed and warranted that the said legs would ‘come all right,’ and that the horse was sound in every respect.”

The following was the first question in the special verdict:

“Did the plaintiff at the time of the sale represent this horse to be all right except for the swelling of the hind legs caused from standing in the barn?”

To which the jury answered, “No.”

The next question was:

“Did the defendant rely upon these representations at the time he bought in the horse at such sale?”

To which the jury answered, “No.”

It will be seen that one of the main issues made by the pleadings was whether there was an express warranty and that this claim was negatived by the verdict.

It is now claimed by defendant's counsel that by reason of concealment and deceits there was an implied warranty.

[2] It is doubtless true that under some circumstances 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 verdict of the jury because the defendant did not make full disclosure of all the facts known to him.

The Wisconsin cases principally relied on by defendant are: Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552;Schauer v. Bodenheimer, 150 Wis. 550, 137 N. W. 785;Giffert v. West, 33 Wis. 617;Brillion Lumber Co. v. Barnard, 131 Wis. 284, 111 N. W. 483.

In the first of these cases there was direct evidence of an express warranty and the judgment was reversed because of error in rejecting evidence on that subject.

The second was an action for deceit on false representation that the mare had an ailment of little consequence, while in fact she had mange--a much more serious disease.

Some of the questions in the special verdict were answered in the buyer's favor, but the jury disagreed on the question whether the seller deceitfully failed to inform the buyer of the facts.

The court, notwithstanding this fact, entered judgment for the buyer. The seller's counsel had proposed a question whether the buyer relied on the representations made, and the request was denied.

It was held by this court that whether the buyer relied on the representations made, and whether the concealments induced the purchase, were clearly questions for the jury.

The third case above cited related to the purchase of a note, and the fourth is to the effect that, if a person undertakes to give information to one who is about to enter into a contract of suretyship relative to the hazards which may arise, he must make full disclosure. In Smith v. Reed, 141 Wis. 483, 124 N. W. 489, cited by respondent's counsel, the buyer relied on a warranty. The jury found that the seller represented that the horse was all right but did not say he would...