Murphy v. McGraw

• Court: Michigan Supreme Court
• Writing for the Court: LONG, J.
• Citation: Murphy v. McGraw, 74 Mich. 318, 41 N.W. 917 (Mich. 1889)
• Decision Date: 20 February 1889
• Parties: MURPHY v. MCGRAW.

41 N.W. 917

74 Mich. 318

MURPHY v. MCGRAW.

Supreme Court of Michigan

February 20, 1889

Error to circuit court, Bay county; GAGE, Judge.

Action by Albert H. Murphy against Frank S. McGraw. Judgment for plaintiff, and defendant brings error.

LONG J.

This action is brought to recover money paid by plaintiff to defendant for a horse, and money expended by plaintiff in attempting to cure the horse of disease. Plaintiff had a verdict and judgment in the court below for $601.50. Defendant brings error.

The declaration is upon the common counts in assumpsit, to which are added two special counts, setting out the purchase and sale of the horse under a warranty that he was sound, straight, and all right, and just such a horse as plaintiff wanted, and met all the requirements stated by plaintiff to defendant prior to the purchase alleging a breach of the warranty, and that the horse was of no value whatever at the time of the purchase. In the first special count plaintiff alleges that on the 10th day of March, 1887, defendant sold him a horse for $400, and promised that the horse was sound and without a blemish, and under 6 years of age; and further promised that if the horse should prove unsound defendant would, on the return of the same, repay the purchase price; and that the horse was 12 years old and was unsound and blemished; and on November 18 1887, he returned the horse to defendant, who received the same, and hath wholly refused to repay said sum of money. The second special count is as follows: "And also for that whereas, on or before the 10th day of March, 1887, the said defendant was the owner and in possession of a certain horse which he was offering for sale, and one A. T. Miller was an employe of defendant for hire, and was then and there in charge of defendant's stables and of said horse, as such employe, and said plaintiff, being desirous of purchasing a sound, speedy, and healthy horse for his own use, the said defendant represented said horse to be such an one as above described, and such as plaintiff desired to purchase. Said plaintiff, when examining said horse, noticed some slight marks and abrasions of the skin on said horse's legs and feet, and upon which some medicine had been used, and, calling the attention of said defendant to the same, he was assured by said defendant and said Miller, in the presence and hearing of said defendant, that said abrasions and marks were caused by a slight attack of scratches, a common and comparatively harmless complaint; and said plaintiff, relying on said assurances so given by said defendant, thereupon bought said horse, and paid to said defendant the sum of four hundred dollars in lawful money for said horse, which sum would be his value if he was sound and such a horse as defendant represented him to be. After said plaintiff took possession of said horse, said malady became very much worse, notwithstanding the fact that said horse received the best possible care and medical treatment; and what was represented by said defendant and said Miller, his employe as aforesaid, to be a temporary and harmless blemish was really, at the time said horse was sold to plaintiff, and for months prior thereto had been, and still is, a loathsome, incurable, and serious disease of the skin, rendering said horse worthless, all of which the said defendant, before and at the time he sold said horse to plaintiff, well knew; whereupon said plaintiff informed said defendant of the condition of said horse, on or about the 15th day of March, 1887, and kept him informed from time to time of the aforesaid condition of said horse, and said defendant, when so informed of the disease, blemish, and unsoundness aforesaid, still claimed that said disease was curable, and requested plaintiff to continue having said horse treated medically, which said plaintiff then and there did, notwithstanding which care and medical treatment said horse did not improve or recover from said disease, and plaintiff, on or about the 19th day of November, 1887, returned said horse in the same condition in which he received him to said defendant," etc. This count then alleges a promise to repay the money so paid for said horse, and a refusal to repay the same.

Plaintiff also filed a bill of particulars in the case under the common counts, as follows: To cash received by defendant for the use of plaintiff, $400; interest on the same, $28; cash expended for medicine, care, and maintenance of the horse from March 10 to November 19, 1887, $300; cash paid for freight for conveying said horse from Bay City to Detroit, and from Detroit to Bay City, $50; total, $778. The plea is the general issue.

After the jury were sworn in the case, defendant's counsel objected to the introduction of any testimony, on the grounds: (1) That the declaration did not state a cause of action. (2) That the second count, being a count in tort cannot be joined with the first count, which is a count in assumpsit, and that the plaintiff elect upon which count he will proceed. (3) That the two counts, if they are in assumpsit, are inconsistent with each other, and the plaintiff should elect upon which he will proceed; the first being on express contract, and the second on an implied one. The court very properly overruled these objections. These counts are in assumpsit to recover back the money which plaintiff claims defendant obtained from him without consideration, by the sale of a horse which plaintiff contends was wholly worthless, and which he purchased upon the warranty of defendant that it was sound, straight, and all right, and just such a horse as plaintiff wanted. The first special count alleges the warranty, and its breach. The second special count alleges the warranty, and sets out with much particularity the condition of the horse at the time of the purchase; the representation then made by the defendant and his employe as to the condition of the horse, and assurances that the marks or abrasions were scratches, a common and comparatively harmless complaint; the reliance of the plaintiff upon these representations; and the fact that with the best care and medical treatment what was represented to be scratches proved to be, and is, a loathsome and incurable disease, rendering the horse worthless. These two counts in the declaration each state a cause of action, and are not inconsistent, and the court very properly refused to compel the plaintiff to elect under which he would proceed. The first count is in assumpsit for a breach of the warranty in the sale. The second is in assumpsit for the recovery of money paid without consideration; setting up the circumstances under which it was obtained, and that the horse purchased was absolutely without value. The question whether upon a breach of the warranty a right existed to return the property, is one of law; and, as there was no acceptance of the return, if that right did not exist, then the averment of return offered was surplusage, and left the special counts as if it had been omitted, and the claim of too much would not vitiate the rest. Manufacturing Co. v. Vroman, 35 Mich. 325. Even if these special counts had not been added, under the circumstances shown upon the trial and claim made the plaintiff might have recovered under the common counts alone. If, as it is claimed by the plaintiff, the horse was of no value whatever, then the defendant had obtained $400 of plaintiff's money without consideration, which, in equity and good conscience, he ought to repay; and in the language of Lord ELLENBOROUGH in Hudson v. Robinson, 4 Maule & S. 475, 478: "An action for money had and received is maintainable whenever the money of one man has without consideration got into the pocket of another;" and, whether the recovery was asked on the special or general counts, the same facts had to be relied on by the plaintiff, and the same defense made. Under the theory of the case the plaintiff could only recover upon the ground that the money was...