Lindsay v. Davis

• Decision Date: 31 July 1860
• Citation: 30 Mo. 406
• Parties: LINDSAY, Appellant, v. DAVIS, Respondent.
• Court: Missouri Supreme Court

30 Mo. 406

LINDSAY, Appellant,

v.DAVIS, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. There must be a warranty or fraud to make the vendor of a horse with a secret malady responsible to the purchaser; the purchaser takes the risk of quality and condition, unless he protects himself by a warranty, or there has been fraud on the part of the vendor.

2. A warranty may be either verbal or written; when it rests upon oral proof, it is a question of intent, and, like any other fact, should be left to the jury.

3. A simple affirmation of soundness, or mere expression of opinion, does not constitute a warranty unless it is so intended and understood at the time.

4. Where, in a suit to recover damages for a fraudulent representation of soundness, the plaintiff avers in his petition that the disease constituting the unsoundness is glanders, he is bound to prove such allegation; although unnecessary, it is not immaterial when made.

5. Although the plaintiff in such case must show that the disease constituting the unsoundness is glanders, yet it is not necessary to show that the defendant knew that the animal sold by him was affected with the alleged form of disease; it is enough that he knew the animal was unsound.

6. It is for the jury to determine what constitutes an unsoundness.

Appeal from Henry Circuit Court.

This is an action by Reuben T. Lindsay against Joseph Davis. The petition has two counts. In the first count the plaintiff sets forth the purchase of sixteen mares and a jack from the defendant; that defendant warranted said mares (except one) and the jack to be sound; that they were unsound and infected with a contagious disease called “glanders;” that said mare excepted from the warranty, defendant fraudulently represented to have been diseased with a disease called “distemper,” a common and not dangerous disease; that defendant knew said disease was not distemper but was glanders; that said stock was unsound; that three of said mares have died of said disease; that plaintiff has been compelled to kill another to prevent the spreading of said disease; that he is damaged, &c.

In the second count of the petition, the plaintiff sets forth that on, &c., he was the owner of alarge amount of stock, &c. that he purchased sixteen mares and a jack from the defendant; that defendant, on said sale and purchase, falsely represented said animals to be sound, (except one mare which he said had been diseased with distemper;) “that said animals so represented by defendant to be sound were at that time unsound and defendant knew it; that they were diseased with an infectious, contagious and fatal disease called glanders; that defendant well knew that the mare, which he stated had had distemper, was then diseased, not with distemper but with glanders, and that the balance of said animals had been and were then exposed to and liable to have said disease, if they did not then have it; that defendant fraudulently concealed from plaintiff his knowledge touching the existence of said disease among said animals, and their exposure and liability thereto as above stated; that plaintiff, confiding in the representations of the defendant, made said purchase of defendant, took said animals to his farm, not knowing or even suspecting the existence of said disease among them, whereby said disease was communicated to plaintiff's other stock.” The petition then proceeds to state the nature of the damage received.

Much testimony was adduced on both sides. Its character, so far as it throws light on the opinion of the court, will be seen from the opinion. The instructions asked by plaintiff, with the exception of one with respect to the measure of damages, were refused. The following is the third instruction asked for by plaintiff and refused: “3. If the jury find from the evidence that the mares and jack, or any or either of them at the time the plaintiff purchased them of defendant, were unsound and diseased with glanders, and defendant knew they were unsound and diseased, but did not disclose to plaintiff his information and knowledge in relation to said disease, but induced the plaintiff to buy them believing they were sound, and the plaintiff had not at the time equal means of knowledge and information in regard to the existence of said disease; and that plaintiff, without knowing of said unsoundness, placed said animals among his other stock, whereby they or any of them contracted said disease, and that any of them have since died of said disease, or have been rendered of less value by their exposure to said disease or by having the same, the jury will find for the plaintiff, whether the defendant knew the disease was glanders or not.

The following are the instructions given for defendant: “1. There is no evidence that the defendant warranted any of the animals sound at the time of the sale. 2. Unless the jury shall believe from the evidence that the defendant, at the time of the sale of the stock to plaintiff, knew that the distemper which it had was not a temporary, but an unsoundness occasioned by the glanders, they should find a verdict for the defendant. 3. Although the jury may believe from the evidence that the stock at the time of the sale to plaintiff by defendant was diseased with a disease called glanders, yet, if the jury believe from the evidence that the defendant did not know that it was glanders, but honestly believed that it was distemper, and in good faith merely gave it as his opinion that it was distemper, then they should find for defendant. 4. Although the jury may believe from the evidence that the stock sold by defendant to plaintiff was diseased, yet, unless that disease was the glanders, they must find for the defendant. 5. Although the jury may believe from the evidence that at the time of the sale of said stock by the defendant to plaintiff the same was diseased with a disease called glanders, yet unless they further believe from the evidence that defendant knew it, and did not disclose it, and concealed the same from plaintiff, or made some statement to the plaintiff which defendant knew was untrue or calculated to deceive plaintiff, they must find for defendant.”

The jury found for the defendant.

Peyton & Loan, for appellant.

I. The court improperly refused instructions asked by plaintiff. The first instruction given for defendant was improperly given. The evidence of Bruce tended to prove a warranty of soundness. (26 Mo. 523; 18 Mo. 171.) The other instructions given for defendant are also erroneous. It was not necessary to a recovery by plaintiff that defendant should have known that the stock sold plaintiff was diseased with glanders. The plaintiff does not state in his second count that defendant knew the stock sold had the glanders. The charge is that the stock were unsound, and that defendant, knowing them to be unsound, fraudulently represented them to be sound. The other statements in said count with reference to said unsoundness are only by way of aggravation and need not be proved. (1 Greenl. Ev. § 61; Barnum v. Van Dusen, 16 Mo. 204.) It is not charged that defendant knew the unsoundness to be glanders. It was not necessary to prove that defendant knew the unsoundness to be glanders. (16 Conn. 204.)

Ryland & Son, Johnson, Freeman & Wright, for respondent.

I. There was no warranty in the sale. The words used do not amount to a warranty. (2 East, 314; 9 Watts, 55; Moses v. Mead, 1 Denio, 385; Emerson v. Brigham, 10 Mass. 207; Sweet v. Colgate, 20 Johns. 203; Foster v. Caldwell, 18 Verm. 176.) The testimony did not make it appear that defendant knew the animals were diseased when sold; nor does it appear that he made any misrepresentations, or any artifices or inducements to plaintiff to induce him to buy. The plaintiff was bound to prove the...