Marsh v. Webber
| Decision Date | 01 January 1871 |
| Citation | 16 Minn. 375 |
| Parties | MICHAEL MARSH v. ISAAC WEBBER. |
| Court | Minnesota Supreme Court |
Batchelder & Buckham, for appellant.
Gordon E. Cole, for respondent.
The complaint alleges that on the twentieth of September, 1866, the plaintiff purchased of the defendant 432 sheep for the sum of $1,275; that the defendant knowing at the time that the sheep were unsound and diseased with a contagious disease called the scab, falsely and fraudulently represented to the plaintiff that the sheep were all sound, and right and free from any disease, and the plaintiff relying upon such false and fraudulent representations, and believing them to be true, purchased the sheep. The complaint further alleges that the plaintiff, at the time he purchased the said sheep of the defendant was the owner of 315 other sheep, which were all sound and free from disease, and of the value of about $1,000, and not knowing that the sheep purchased from the defendant were unsound and diseased as aforesaid, and believing the false and fraudulent representations of the plaintiff as to their soundness, put the sheep purchased of the defendant with his other sheep; and that the sheep purchased of the defendant as aforesaid communicated said disease to the plaintiff's other 315, and thereby all the other sheep of the plaintiff became unsound and had said disease, and were and are of little value to the plaintiff, and by reason of such facts the plaintiff has suffered and been damaged, etc., demanding judgment for $3,500 damages.
The answer admits the sale of 431 sheep for $1,275; avers that the defendant has no knowledge or information sufficient to form a belief as to whether plaintiff at the time of the purchase was the owner of 315 sheep, and whether the same were all sound and free from disease, and were of the value of $1,000, or whether the plaintiff put the sheep purchased of the defendant with his other sheep; admits that the plaintiff did not know the sheep sold to him by defendant were diseased with the scab, or otherwise, and avers that they were sound and free from all disease, and denies that plaintiff has been damaged in any sum.
Upon a second trial of the cause the jury returned a verdict for the plaintiff of $2,500. A motion for a new trial was made by the defendant, which was denied by the district court, whereupon the defendant appealed from the order.
The first point made by the defendant is that the damages are excessive.
Under the pleadings in this case it will be presumed, in support of the verdict, that there was an express warranty of the soundness of the sheep; that they were unsound, and that the defendant knowing they were not sound made the warranty fraudulently.
Where a fraudulent sale and warranty of personal property has been made, the vendee may rescind the contract, return the property, and recover back the price paid therefor, or he may affirm the contract and recover damages for the fraud.
In this case the property was retained by the vendee, who brings the action to recover damages for the fraud.
The plaintiff was entitled to recover all the damages of which the act complained of was the efficient cause. Sherrod v. Langdon, 21 Iowa, 518.
As to the flock purchased by the plaintiff from the defendant, Webber, the warranty being single and relating to an infectious disease, the plaintiff was entitled to recover the whole loss to him occasioned by the presence of the disease among the flock purchased, as well among those which took the infection after the sale without the fault of the plaintiff as those which had it when the sale was made; also all damages to his own flock by reason of such contagious disease, communicated to it by the flock purchased, by reason of their being mingled together.
The testimony in the case may reasonably be considered as sufficient to support the conclusion that the Webber flock by reason of the existence of the disease at the time of the sale and its subsequent developments and effects, was of no value, and that the plaintiff's damages were the entire value of the sheep at the time of the sale, as they were warranted to be. The value it is admitted was $1,275.
So far as the plaintiff's original flock is concerned the testimony shows that the the whole flock was diseased, and that before the first of May, 1867, 465 of the entire flock died of this disease; that in July, 1867, there survived but 258 of the joint flock, which number it appears the plaintiff afterwards drove to St. Paul and sold.
It appears in the testimony that in the spring of 1867, the sheep, if sound, would have been worth $4 or $5 per head, and in their actual condition were not worth more than $1 per head. It would be competent for the jury in view of the fraud in the sale to allow the highest of these sums. Assuming — as it is the most favorable view for the defendant — the 258...
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