Horton v. Green

• Citation: 66 N.C. 596
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1872
• Parties: JOHN HORTON v. ELIJAH GREEN.

66 N.C. 596

JOHN HORTON

v.ELIJAH GREEN.

Supreme Court of North Carolina.

January Term, 1872.

1. In action for deceit and false warranty, after evidence by plaintiff that he discovered the alleged unsoundness (glanders) early next morning after the sale, it is competent, by way of impeaching such testimony, for the defendant to prove by a witness that he and plaintiff lived in a very small village (Boone) and within fifty yards of each other and that he (witness) did not hear of the alleged unsoundness until some two weeks after the sale.

2. Per BOYDEN, J., arguendo: Glanders among stock is quite as alarming to the owner as small pox among men.

3. Evidence, by way of dialogue, in haec verba:--

Plaintiff:--“What will you take for your mule?”

Defendant:--“One hundred and twenty-five dollars.”

Plaintiff:--“I can't give $125, but if it is all sound and right I will give you $100.

Defendant:--“It is all sound and right, and I will take $100 if you will pay the money down.”

Plaintiff:--“I cannot pay the money all down, but will pay $25 down and give my note and security for the balance.”

Defendant:--I agree; here's your mule.”

--Does not per se constitute a warranty, but is only evidence for the jury, to be weighed by them in connection with the surrounding circumstances of the transaction.

4. Among these circumstances may be considered the tone, looks, gestures and the whole manner of the transaction.

5. The doctrine upon special contracts of personalty and the point whether the question of warranty is to be decided by the Court or left to the jury with the proper instructions, has been too long and too thoroughly settled in this State, to be now overturned by decisions in other Courts and this Court is satisfied with the reasoning and adheres to the former decisions.

The cases of Baum v. Stevens, 2 Ired., 411; Erwin v. Maxwell, 3 Mur., 241, and Ayers v. Parks, 3 Hawks, 59, cited and approved.

Civil action tried before Mitchell, J., at the last Fall Term of Caldwell Superior Court.

It is considered that the syllabus and opinion convey a sufficiently correct idea of the questions raised and points decided without an attempt to condense the voluminous statement contained in the transcript. Suffice it to state that the second point was made by way of requests for instructions to the jury, embracing substantially the language contained in the dialogue in the third syllabus.^a1

There was a verdict and judgment for the defendant and the plaintiff appealed.

Folk and Batchelor for the appellant .

It is often said in the books that “whether a verbal warranty as to the quality of a personal chattel exists or not is a question of intention, to be inferred by a jury from the nature of the sale and the circumstances of the particular case.”

If this means that the rules for interpreting verbal warranties differ from those applied to other contracts--the position is not sustained by legal analogy and authority. It is true that the existence of a warranty, like that of every other contract, depends upon the intention of the parties, but it does not follow that such intention is, in every case, matter of fact to be ascertained by a jury. If the warranty depends upon words and circumstances which are disputed, the jury in determining the dispute, necessarily determines the question of warranty, but if the words and the circumstances under which they were used, are ascertained, the existence of the warranty is matter of law for the Court.

The learned counsel then proceeded to make many distinctions, presented numerous analogies, collated and reviewed the cases on the subject from earliest period. The great “length” of his “brief” forbids its insertion.

Battle & Sons for the appellee :

I. The evidence of the witness to prove that he lived within fifty yards of plaintiff, and how long after the sale before he heard of the disease, was competent,

(1.) To show that the mule was sound.

(2.) To discredit plaintiff's testimony.

II. A mere affirmation of soundness does not amount to a warranty unless it was so intended, and such intent was a question of fact for the jury, 1 Pars. Con., 580, 581, note w, (5th ed.) Erwin v. Maxwell, 3 Mur., 241, Inge v. Bond. 3 Hks., 101, Baum v. Stevens, 2 Ired. 411, Foggart v. Blackweller, 4 Ired., 238. Starnes v. Erwin, 10 Ired., 226.

Armfield on the same side:

Where the words used are merely words of commendation used as expressing only an opinion, no action of warranty lies. Selwyn's N. P., 683. Erwin v. Maxwell, 3 Mur., 241, Foggart v. Blackweller, 4 Ired., 237.

BOYDEN, J.

In this case the plaintiff offered evidence to show that the next morning after the trade, between day-light and sun-up plaintiff's son discovered that the mule was diseased, and running copiously at the nose, his legs and throat swollen, and his head drooping. The defendant called on Thomas J. Coppy as witness, who stated that he, at the time of the trade and after, lived in the same town with the plaintiff, (which is quite a small village) and within fifty yards of the plaintiff. This witness was then asked. “How long after the sale by Green to Horton of this mule, did you first hear that it was was diseased. This question was objected to by the plaintiff, but the Court admitted it, and he answered about two weeks.

This we think was some evidence at least, tending to contradict the plaintiff, whose statement went to show that the mule the morning after the purchase, was pretty far gone with the glanders, of which disease the mule and five others of his stock died; a disease among stock quite as alarming to the owners as small-pox among men. The case of Newby v. Jackson, 7 Jones, 351, is a full authority for the admission of this evidence. The only other...