McAdams v. Cates

• Citation: 24 Mo. 223
• Parties: MCADAMS, Plaintiff in Error, v. Cates, Defendant in Error.
• Decision Date: 31 January 1857
• Court: United States State Supreme Court of Missouri

24 Mo. 223

MCADAMS, Plaintiff in Error,

v.Cates, Defendant in Error.

Supreme Court of Missouri.

January Term, 1857.

1. If the vendor of a horse is aware, at the time of the sale, of the existence of a latent defect unknown to the vendee, of such a character that the vendee would not have made the sale had he known of it, and such as would have ordinarily escaped the observation of men engaged in buying horses, and he allows the vendee to purchase without disclosing the defect, he is guilty of a fraudulent concealment, and must respond in damages to the vendee.

Error to Polk Circuit Court.

The following instruction was given to the jury at the instance of the defendant: “Although the jury shall believe from the evidence that the defendant knew that the filly was unsound from the loss of her teeth, yet unless they shall further find from the evidence that the defendant made some statement or representation as to the soundness of the filly which was not true, or used some artifice to conceal the unsoundness, or to throw the plaintiff off his guard, so that he did not examine said filly before the exchange, and that the plaintiff was thereby deceived, they must find a verdict for defendant. Further, if the jury shall believe from the evidence that the plaintiff, before the exchange, knew that the filly was unsound, they must find for the defendant.”

F. P. Wright, for plaintiff in error.

Gardenhire, for defendant in error.

LEONARD, Judge, delivered the opinion of the court.

The Circuit Court, considering that the party was not bound to disclose any secret defect in the filly, directed the jury that he was not responsible, unless he used some artifice to conceal the fault or throw the plaintiff off his guard, so that he did not examine her. Chancellor Kent lays down the rule of legal duty in this particular to be that each party must communicate to the other his knowledge of all material intrinsic defects, provided he knows the other party to be ignorant of them, and they are not equally within the reach of his observation. (2 Kent. Com., 8th ed., p. 482.) But Justice Story (1 Eq. Jur., 6th ed., §208) thinks the duty of disclosing defects, as a legal obligation, is confined to the cases where the party in possession of the facts is under some special obligation, by confidence reposed or otherwise, to communicate them, so as to authorize the buyer to act upon the presumption that there is no concealment of any material circumstance. In Bench v. Sheldon (14 Barb., S. C., 72) the rule thus qualified is said to be the true one; and it is there remarked that, in sales of personal property, the law allows the purchaser to impose confidence in the vendor as to all such defects as are not within the reach of ordinary observation, and imposes upon the latter the corresponding duty of disclosing them. In Roll. Abr., p. 90, it is said that, if a merchant sell cloth knowing it to be badly fulled, an action on the case in the nature of deceit lies against him, because it is a warranty in law. In Southern v. Howe (2 Roll. R. 5) it was stated that, if a man sell wine knowing it to be corrupt, an action of deceit lies against him, though there be no warranty; and in Mellish v. Mottcan (Peake's Cases, 115) a ship was sold that had a latent defect known to the seller, but which the buyer could not by any attention possibly discover; and it was held that he was bound to disclose it, and his failure to do so was a...