Moncrief v. Wilkinson

• Decision Date: 13 April 1891
• Citation: 93 Ala. 373,9 So. 159
• Parties: MONCRIEF v. WILKINSON.
• Court: Alabama Supreme Court

9 So. 159

93 Ala. 373

MONCRIEF v. WILKINSON.

Supreme Court of Alabama

April 13, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Parson, Darby & Burnett, for appellant.

Cabaniss & Weakley, for appellee.

MCCLELLAN J.

This is an action sounding in damages for deceit in the sale of a mule by Moncrief to Wilkinson. It was begun in a justice's court, where judgment was rendered for plaintiff, from which defendant appealed. Trial in the circuit court was had without jury, and exception reserved to the conclusion of the judge on the facts, and consequent judgment in favor of the plaintiff. The present appeal brings under review this conclusion and judgment of the court upon the evidence. Acts 1888-89, p. 800. We are reasonably satisfied that the defendant, in response to inquiries as to the soundness of the mule, repeatedly stated that the animal was "all right," and that these assurances conduced to the purchase by the plaintiff. Confessedly the mule was not "all right." On the contrary, her eyes were diseased in such sort as, at irregular intervals and for varying periods, to seriously impair vision, and as would finally produce total blindness. Confessedly, also, the defendant knew of this disease, and purposely refrained from informing the plaintiff of it. The testimony is that this defect or infirmity was such as to reduce the value of the animal at least one-half. The fact that plaintiff and defendant had concurred in fixing the value at $165, on the assumption, so far as plaintiff was concerned, and on representation on the part of defendant, that it was free from infirmity, is sufficient proof, for all the purposes of this case, that that was the real value; and hence the damage suffered by the plaintiff was at least $82.50, according to the evidence.

The only remaining point for consideration involves the question whether the defect was latent or patent. The plaintiff testifies that after a by-stander, whose opinion he asked had told him there seemed to be something the matter with the animal's eyes, he examined them, could not see that anything was wrong with them, and they appeared to be all right. The defendant admits, in effect, his reliance upon the appearance of the eyes, giving no indication of the disease and says he was "on his guard" with respect to making no statement in regard to them unless directly questioned in that connection. From this reliance of ...