Lunn v. Shermer

• Decision Date: 31 October 1885
• Citation: 93 N.C. 164
• Court: North Carolina Supreme Court
• Parties: L. L. LUNN v. PERRY SHERMER.

93 N.C. 164

L. L. LUNN

v.PERRY SHERMER.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION, tried before McKoy, J., and a jury, at the Spring Term, 1885, of ROWAN Superior Court.

The plaintiff in his complaint alleged that he purchased a mule from the defendant on the ..... day of August, 1882, and the defendant falsely and fraudulently represented to him that the said mule was sound as far as he knew, and that he was thereby induced to purchase for the sum of one hundred and seventy-five dollars.

That the said representations were false, in that the mule was then diseased with “farcy,” or some other incurable disease, and the defendant well knew that fact at the time of the sale.

The defendant in answer to the complaint admitted that he sold the mule to the plaintiff and told plaintiff at the time that the mule was sound as far as he knew, but denied all the other allegations of the complaint.

The following issues were submitted to the jury:

1. Was the mule sold by defendant to plaintiff unsound at the time of sale?

2. Did the defendant represent the mule to be sound as far as he knew?

3. Did he at the time know or have good reason to believe that the said mule was not sound?

4. How much damage is plaintiff entitled to receive for the unsoundness of said mule?

Defendant excepted to third issue, and offered the following issue:

“If not sound at the time of the sale, did the defendant know of his unsoundness and falsely and fraudulently represent him to be sound, with the intent to induce the plaintiff to buy?”

The Court declined to insert the issue; defendant excepted.

On the trial, L. L. Lunn, plaintiff, testified that he bought the mule from defendant at one hundred and seventy-five dollars; that defendant only knew the plaintiff in the trade; that he bought the mule with the money of Payne, Lunn & Co., manufacturers of tobacco at Salisbury; that the firm had a contract to deliver certain mules to a party in Charleston, S. C.; that he exchanged the mule bought from the defendant with his father, B. F. Lunn, and the mule he got from his father was delivered, with four others, in Charleston, S. C., at eight hundred and fifty dollars for the five mules, and mule he got from B. F. Lunn was the best in the lot; that he did not warrant the mule to his father, but told him Shermer, the defendant, said the mule was sound; the unsoundness appeared two or three weeks after B. F. Lunn got the mule; B. F. Lunn had never threatened him with suit, but that his father was claiming damages on account of the unsoundness of the mule.

The defendant's counsel objected to the plaintiff's recovering upon his own testimony, in his own name, as the trade was made with the firm of Payne, Lunn & Co., and on the firm account.

The court held that, from the face of the pleadings, no such question was raised; that the Court would permit them to amend their answer so as to raise the question. Defendant declined to amend. Defendant asked the Court to charge the jury that plaintiff could not recover damages as, according to his own evidence, he had sustained no loss. The Court, leaving that question to the jury, charged them: That the measure of damages was the difference between the value of the mule at the time of the purchase, if sound, and the value of the mule if diseased at that time, to which charge defendant excepted.

The jury responded in the affirmative to each of the three first issues, and on the fourth issue, assessed the plaintiff's damages at one hundred and seventy-five dollars. There was judgment in behalf of the plaintiff, for the amount of damages assessed by the jury, and the defendant appealed.

Mr. Charles Price, for the plaintiff .

Mr. Armistead Jones, for the defendant .

ASHE, J. (after stating the case as above).

That the Judge refused to charge the jury that the plaintiff could not recover in his own name was made a ground of exception, because the purchase of the mule was made with the money of Payne, Lunn & Co., and on the firm's account. In this there was no error. The complaint expressly alleges, and the answer expressly admits, that the mule was sold to plaintiff by defendant.

A defect of parties is a good ground of demurrer when the defect appears upon the face of the complaint. The Code, §239, sub-sec. 4. And “when the matter alleged as ground of demurrer does not appear on the face of the complaint, the objection may be taken by answer.” Ibid., §241. But “if no such objection be taken, whether by demurrer or answer, the defendant shall be deemed to have waived the same. Ibid., §242.

The alleged defect of parties here did not appear on the face of the complaint. The defendant, therefore, could not demur; nor did he raise an objection to the complaint for that defect, in his answer, but in fact admitted it; consequently he is deemed to have waived the objection, and the plaintiff, for all the purposes of the action, must be considered as the real party in interest.

The defendant excepted to the third issue, and offered as a substitute the following, to-wit: “If not sound at the time of the sale, did the defendant know of the unsoundness, and falsely and fraudulently represent him to be sound, with the intent to induce the plaintiff to buy?” We think there was...