Hodges v. Smith

• Decision Date: 11 September 1912
• Citation: 75 S.E. 726,159 N.C. 525
• Court: North Carolina Supreme Court
• Parties: HODGES . v. SMITH.

75 S.E. 726

(159 N.C. 525)

HODGES .

v.SMITH.

Supreme Court of North Carolina.

Sept. 11, 1912.

1. Appeal and Error (§ 999^*) — Review — Findings—Conclusiveness.

In an action for personal injury caused by a horse bought from defendant by plaintiff, findings against defendant on issues as to warranty and false representation as to the qualities of the horse are conclusive on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921; Dec. Dig. § 999.*]

2. Sales (§ 441*) — False Representations by Seller—Evidence—Sufficiency.

In an action for personal injury caused by a horse bought by plaintiff from defendant, evidence held to sustain a finding that defendant falsely represented that the horse was gentle and that he knew of its vicious propensities.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1277-1283; Dec. Dig. §, 441.*]

3. Sales (§ 261*) — Misrepresentation by Seller—Liability.

A seller of a horse is liable for falsely representing it to be gentle, though the representation was made in good faith; he having no right to make it, unless he positively knew that the horse was gentle.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 727-735; Dec. Dig. § 261.*]

4. Sales (§ 442*)—Breach of Warranty-Damages—Elements.

A buyer of a horse can recover from the seller for personal injury received through the horse's vicious character; the measure of damages not being limited to the difference between the value of the horse as warranted and as he actually proved to be.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.*]

Appeal from Superior Court, Beaufort County; Webb, Judge.

Action by J. B. Hodges against R. L. Smith. Judgment for plaintiff, and defendant appeals. Affirmed.

The following issues were submitted to the jury:

"1. Did defendant warrant and represent to plaintiff that the horse in question was gentle in harness and safe to drive, as alleged in the complaint? Answer: Yes.

"2. If so, was said warranty and representation false, as alleged in the complaint? Answer: Yes.

"3. If so, was plaintiff injured in consequence thereof, as alleged in the complaint? Answer: Yes.

"4. What damage is plaintiff entitled to recover of defendant? Answer: One thousand dollars ($1,000)."

From the judgment rendered the defendant appealed.

F. G. James & Son and Ward & Grimes, for appellant.

Small, MacLean & McMullan, for appellee.

BROWN, J. This case was before this court on a former appeal, and is reported in 158 N. C. 256, 73 S. E. 807. The plaintiff seeks to recover damages for personal injuries sustained by the running away of a horse purchased by him of the defendant, on the ground that the horse was falsely warranted to be gentle. On a former trial a motion to nonsuit was sustained, and this court held that there was sufficient evidence to go to the jury and ordered a new trial.

The issues as to warranty and false representation as to the qualities of the horse have been found against the defendant on a charge not excepted to, and those findings may be considered as settled. The case now comes before this court upon the sole question as to whether, in any view of the evidence, there is sufficient ground to warrant a recovery for damages for injuries consequent upon the running away of the horse.

As we read the case upon the record now sent up, the facts and evidence as developed in the second trial are substantially the same as on the former trial, and are recited fully in the opinion of Mr. Justice Walker. It is contended, however, upon this hearing, that the plaintiff can recover only the difference between the value of the horse as warranted and as he actually turned out to be, upon the ground that there is not evidence of a false representation upon the part of the defendant, or that he knew of the vicious character of the animal.

We think the contention of the learned counsel for the defendant cannot be sustained. It was held by us on the former trial that there was evidence tending to prove that the defendant falsely and knowingly represented that the horse was kind and gentle. The evidence on both trials seems to be practically the same. The plaintiff testified that he went to the defendant's stables in Greenville to purchase a horse, and that he told the defendant that he wanted a gentle horse, "one for my mother and father to drive; that they are old, and I want one that is safe." He said: "All right, we have...