McClintock v. Emick

• Decision Date: 31 March 1888
• Citation: 87 Ky. 160,7 S.W. 903
• Parties: MCCLINTOCK v. EMICK et al.
• Court: Kentucky Court of Appeals

7 S.W. 903

87 Ky. 160

MCCLINTOCK v. EMICK et al.

Court of Appeals of Kentucky.

March 31, 1888

Appeal from circuit court, Harrison county.

Action by Emick, Stoner & Co. against Thomas B. McClintock for damages for the unsoundness of a lot of mules. Judgment for plaintiffs, and defendant appeals.

J. Q Ward, for appellant.

L. M Martin, for appellees.

HOLT J.

The appellees sue for damages resulting from the unsoundness of a lot of mules purchased by them of the appellant. The first paragraph of the petition, as amended, avers that "the defendant represented to these plaintiffs that said mules were all right; * * * that they relied upon the said statements made as aforesaid, and were induced thereby to make said purchase." It does not allege that the appellant "warranted" them, or that he "represented" in what particular respect they were "all right," or that he expected or intended the appellees to rely upon the representation in making the purchase. In a second paragraph a cause of action for deceit, false representation and fraudulent concealment in making the sale is pleaded. The evidence conduces to show that while the negotiation as to the purchase was in progress the appellant, in response to a question upon that point from one of the appellees, said that the mules were "all right." The jury were in substance instructed to find for the appellees, if the appellant at the time of the sale warranted the mules to be sound, when they were unsound; and that "a representation as to soundness, quality, or condition made by a seller at the time of the sale, with the intention that the purchaser shall rely upon the same, and upon which he does rely in the purchase, amounts to a warranty."

It is urged that the averments of the petition do not constitute a warranty, or state a cause of action upon one; that the instructions presented a case to the jury not supported by pleading; and that, conceding the evidence of the appellees to be true, no warranty is shown. A review of the case as to what constitutes one exhibits much learning and diversity of opinion. Indeed, they cannot all be reconciled. The report of an early and celebrated case says: "All the justices and barons (except ANDERSON) held that for this cause [the want of an averment that he warranted it to be a bezoar-stone] it was error; for the bare affirmation that it was a bezoar-stone, without warranting it to be so, is no cause of action; and although he knew it to be no bezoar-stone, it is not material, for every one, in selling his wares, will affirm that his wares are good, or the horse which he sells is sound; yet if he does not warrant them to be so, it is no cause of action, and the warranty ought to be made at the same time of the sale." Chandelor v. Lopus, Cro. Jac. 4. Although it adhered to form rather than reason, and the argument was at least of doubtful legal morality, yet it was followed by other cases both in England and in this country. Thus, early in judicial history the rule was announced that a mere representation or affirmation by the vendor, however positive, as to the character or condition of an article, could not constitute a warranty. Seixas v. Woods, 2 Caines, 48, although in it the chief justice dissented, and Chancellor (then Judge) KENT intimated that he would have done so had the question been res integra. Some of the more modern cases, as Weimer v. Clement, 37 Pa. St. 147, hold that a naked affirmation is not an express warranty or evidence of it; but that if it amounts to a deceit or fraud, the remedy is by an action ex delicto. As early, however, as the cases of Chapman v. Murch, 19 Johns. 290, and Swett v. Colgate, 20 Johns. 196, if not before, many of the courts of the country began to hold that sense should not be sacrificed to technical language; and that no particular form of words was necessary to create a warranty. Indeed, no valid reason can be given why if A., in selling his horse to B., says, "I warrant him sound," it should be held a warranty, but not, if he says, "He is sound." This court, in the early case of Bacon v. Brown, 3 Bibb, 35, held that while no particular words were necessary to create a warranty of soundness, yet there must be a promise or undertaking as to it, and that a bare representation or affirmation was not sufficient. The subsequent case of Dickens v. Williams, 2 B. Mon. 374, decided, however, that the affirmation of a fact in a bill of sale as to an article sold was a warranty in that respect; that it imported a covenant to that effect; and that thereby the vendor agreed it was true. The case of Lamme v. Gregg, 1 Metc. (Ky.) 444, not only affirmed this doctrine, but held it to apply to verbal contracts, where the representation or affirmation as to the kind, quality, or condition of the article sold is made during the negotiation of the trade.

There is no reason why the rule should not apply to verbal as well as written contracts, if the sale be as effectual in the one case as in the other. The interests of trade, the necessity of uniformity of decision, and the rights of parties require it. If the language used by the parties be binding in the way of a trade, why should not a statement then made as to the soundness of the article be equally so? Of course, if it be the expression of a mere belief or opinion it will not constitute a warranty. Here A. is selling a lot of mules to B. The trade is in progress, and the contract being made. The latter asks the former, "Are they all right?" The answer is, "They are." It is urged that this statement is too indefinite to constitute a warranty of soundness, and that the petition, in stating only it, is defective. In applying the law to the business transactions of men the dictates of common sense and understanding should...