Appeal
from Superior Court, Beaufort County; Cline, Judge.
Action
by J. B. Hodges against R. L. Smith. From a judgment on
nonsuit for defendant, plaintiff appeals. Reversed, and new
trial ordered.
Whether
a warranty is intended from words used in making a sale held
a question for the jury.
Evidence
in an action on a warranty held to warrant its submission to
the jury on the question whether a warranty was intended.
This
action was brought to recover damages for deceit and false
warranty in the sale of a horse. In his answer the defendant
describes himself as "a regular horse and mule dealer
conducting a sales stable at Greenville, N. C." The
following is the plaintiff's version of the facts, as
given in his testimony: "I live in Beaufort county, and
am a farmer and house carpenter. I know R. L. Smith, the
defendant. I went to his stables in December, 1907. He has a
large stable at Greenville. I saw Mr. Savage before I saw Mr
Smith. Savage was working with Smith. I told Mr. Savage that
I wanted a horse, one that my father and mother could drive
and that is gentle and all right. I told him that I had never
bought a horse before. He showed me the horse in question
and told me that he was all right. He priced the horse at
$185 cash. I then saw Mr. Smith, and told him about the
conversation with Savage. He said he had a horse to sell,
that was what he was there for. He said the horse was all
right. I told Mr. Smith that I did not know anything about
horses, that I wanted a quiet, gentle horse. He said that
this one was a quiet gentle horse; that any lady could drive
him. I had Mr. Savage to look at my horse, and we traded. I
gave $145 to boot by mortgage on the horse traded for. Mr.
Smith had the horse hitched to a break cart and driven a
short distance in the stable. He said he had no buggy, but
would hitch him to a cart. My brother was with me at the
time. I had no experience in buying horses. I told Mr. Smith
that I wanted a quiet, gentle horse that my father and mother
could drive. He said this was a gentle horse that any lady
could drive. I relied on what he said and did not know,
except from what he said, whether the horse was gentle or
not. After the trade was made, Mr. Smith had the horse
hooked-up, and I drove him home a distance of about 25 miles.
The next day after that I hitched the horse up again. Lure
Whitaker was with me. We hitched him to a good buggy with a
good harness, and drove him about two miles. The next day
Whitaker and I hooked him up and drove him 125 yards, when he
began to run and kick and threw me out of the buggy, breaking
my leg. Whitaker stopped the horse by pulling him into a
fence. I was laid up nearly all the year. I was in bed six
weeks, flat on my back. I was then up and down until October
or November. The doctor attended me nearly the whole time. My
leg was dislocated and broken together. I was disabled the
entire year, and it affects me yet. After I got hurt, John
Hodges worked the horse for me beside an old team and broke
him for me, and I drove him that fall. The horse was not
worth anything to me. I reckon he was worth $150 or $175 on
the market. I saw the horse after I got hurt. That fall I
wrote Mr. Smith a letter, in November, 1908, and told him I
could not pay for the horse and the interest on the mortgage,
and to send for him, which he did. Before I was hurt, I could
do a man's work. At the time of the injury the horse was
in the main public road near my house, and threw me out of
the buggy. My doctor's bill was $100. I had to hire a man
to work at 50 cents per day and board at 25 cents per day.
The horse I traded to Smith was worth $50. I lost him and
lost my crop that year. My time was worth $1 per day. I have
not been able to do a good day's work since. Was about 24
years old when I made this trade." At the close of the
testimony for the plaintiff, the court, on motion of the
defendant, entered a judgment as of nonsuit, and the
plaintiff appealed.
Small
MacLean & McMullan, for appellant.
F. G.
James & Son, for appellee.
WALKER
J.
The
defendant, in his answer, denies the plaintiff's
allegations, the substance of which have been set out, and
avers that he had recently bought the horse when he sold him
to the plaintiff, and, not knowing his qualities, he could
not have warranted or represented that he was kind and gentle
in harness, but told the plaintiff that the person who sold
the horse to him represented him to be sound and safe, and he
only expressed an opinion to the plaintiff, based upon such
knowledge as he had thus
acquired, that the horse would suit him, and that he made no
warranty and practiced no deceit. The issue thus raised by
the pleadings was not submitted to the jury, and the
defendant offered no testimony, so that the case must be
considered solely upon the evidence of the plaintiff.
We
think the judge erred in ordering a nonsuit. The question
involved in this case has frequently been decided by this
court against the contention of the defendant. As early as
1805, in Thompson v. Tate, 5 N. C. 97, 3 Am. Dec
678, it was held that a vendor of goods is liable on an
express or implied warranty for affirming, at the time of the
sale, that they possess a particular quality which would
increase their value, if it turns out that the affirmation is
not true, although he did not know such affirmation to be
false; and with reference to this principle the court said:
"Upon this question there can be no doubt. The vendor is
clearly liable." This must be read in the light of
subsequent decisions. In Inge v. Bond, 10 N.C. 101,
Taylor, C.J., drew the distinction between an affirmation as
to the title of goods where the law implies a warranty, and
the affirmation binds the vendor, and an affirmation as to
their soundness, which will not amount to a warranty, unless
it appears on the evidence to have been so intended. This is
but the statement of the general rule that, in order to make
a contract, the minds of the parties must agree upon the same
thing, the intention or belief of one only not being
sufficient for the purpose. The intention of both must be the
same. It is for the jury to find what the intention was from
the language used and the circumstances of the case. The law
was stated by Nash, C.J., in Foggart v. Blackweller,
26 N.C. 238, to be well settled, by numerous adjudications,
"that there is no word or set form of words required to
constitute a warranty in the sale of personal property, but
wherever the words used, taken in connection with the
attendant circumstances, show that it was a part of the
contract with the parties that there should be a warranty,
they will suffice. 4 Ad. & E. 473, 31st vol. Com. L.
Rep., Pwon v. Barkham, 5 B. & A. 240, 7 vol. C. L.
R., Sheperd v. Kain, 2 Nev. & Mann. 446, 28 vol. C. L.
R., Freeman v. Baker. These authorities show that every
affirmation made at the time of the sale of personals is a
warranty, provided it appears to have been so intended by the
parties. A bare affirmation, merely expressive of the
judgment or opinion of the vendor, will not amount to a
warranty; and the reason is a warranty subjects the vendor to
all losses arising from its failure, however innocent he may
be, and this responsibility the law will not throw upon him
by implication, except as to the title of the property. As it
respects the value or soundness of the article sold, the law
implies no warranty. The leading case in this state upon the
subject of the warranty of personals is that of Erwin v.
Maxwell, 7 N. C. 241, 9 Am. Dec. 602. In that case the
plaintiff asked the defendant if the horse he was about to
let him have was sound, to which the latter answered that he
was. His Honor Chief Justice Taylor in discussing the subject
says: To make an affirmation at the time of the sale a
warranty, it must appear by evidence to be so intended, and
not to have been a mere matter of judgment or opinion.'
In the case of ...
