Robertson v. Halton

• Decision Date: 11 October 1911
• Citation: 72 S.E. 316,156 N.C. 215
• Court: North Carolina Supreme Court
• Parties: ROBERTSON v. HALTON.

72 S.E. 316

156 N.C. 215

ROBERTSON

v.HALTON.

Supreme Court of North Carolina.

Oct 11, 1911.

1. Fraud (§ 59^*)—Damages.

Where defendant exchanged his mule and $20 for plaintiff's mare, and. upon plaintiff becoming dissatisfied, traded him another mare for the mule, plaintiff was not, in the absence of special damage from the first trade, entitled to recover damages upon each transaction for defendant's misrepresentations, the deceit first practiced upon defendant having been made good by the exchange of the mare for the mule, and plaintiff's ultimate damage was the difference in value between the two mares.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 60-62; Dec. Dig. § 59.*]

2. Fraud (§ 54*)—Actions—Evidence.

Where defendant traded his mule and $20 for plaintiff's mare, and, upon plaintiff becoming dissatisfied, traded him another mare for the mule, the deceit in the first transaction, if any, is evidence of the intent or scienter in the last, the two trades being so closely connected; but evidence of the first is relevant only in tending to show deceit in the last.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 50, 51; Dec. Dig. § 54.*]

3. Exchange of Property (§ 13*)—Actions —Instructions.

In an action for breach of warranty and deceit in an exchange of personal property, there being no special or punitive damages, the damages for the deceit and for the warranty are the same.

[Ed. Note.—For other cases, see Exchange of Property, Dec. Dig. § 13.*]

4. Sales (§ 261*)—Warranties—Statements Constituting.

A statement made by a seller which amounts to nothing more than a mere commendation of the goods is not a warranty; but where it takes the form of an opinion, and it is doubtful whether a warranty was intended, the question of warranty is one of fact for the jury.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 727-735; Dec. Dig. § 261.*]

5. Sales (§ 445 ^2-*)—Warranties—Questions of Law.

Where the words or language used by a seller clearly show a warranty, it is the duty of the court to so declare as a matter of law.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1303-1308; Dec. Dig. § 445.*]

6. Fraud (§ 9*)—Deceit— Elements.

The elements of actionable deceit consist of an untrue statement by defendant, made either with knowledge of its falsity or in reckless disregard of' plaintiffs right, and with intent that plaintiff act upon it, and plaintiff's reliance upon the statement to his damage.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 8; Dec. Dig. § 9.*]

Appeal from Superior Court, Craven County; Ferguson, Judge.

Action by John A. Robertson against T. W. Halton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Moore & Dunn, for appellant.

Simmons & Ward, for appellee.

WALKER, J. This action was brought to recover damages in the sum of $125 for deceit and false warranty in a horse trade, and was tried upon issues which, with the answers thereto, are as follows: "(1) Did the defendant procure the exchange of his mule for plaintiff's mare by fraud and misrepresentation as alleged in the complaint? Answer: Yes. (2) If so, what damages is plaintiff entitled to recover by reason thereof? Answer: Fifty dollars. (3) Did defendant procure the exchange of his mare for the mule swapped him by plaintiff by fraud and misrepresentation, as alleged in the complaint? Answer: Yes. (4) If so, what damages is plaintiff entitled to recover by reason thereof? Answer: Seventy-five dollars." Plaintiff alleged that he was fraudulently induced by the defendant to exchange a bay mare he owned and valued at $200 for a mule owned by the defendant, and $20 as the difference in the value between the two animals, with the understanding that the mule could be returned and another mule substituted, if desired by plaintiff; that, in order to induce the plaintiff to trade, the defendant warranted the mule in several respects, and made certain false and deceitful representations to him as to the fine qualities of the mule. When the plaintiff discovered that he had been deceived, he told the defendant that he was not satisfied with the trade, and that he must make his representations good, whereupon the defendant said that he had a good mare he would substitute for the mule, and at the same time made certain warranties and deceitful representations as to her fine qualties. Judgment was entered upon the verdict, and the defendant appealed.

It will be observed at a glance by any one reading the evidence sent up that this case has been tried upon a wrong theory. Why should the defendant be twice mulcted in damages? The trade was, at first, that they should exchange the plaintiff's mare for the mule and $20. If there had been no further exchange or negotiation and there was a breach of warranty, as to the mule, or a deceit practiced upon the plaintiff, he would be entitled to recover this difference between the value of the mule as he was and as he was represented to be, or as, under the contract or the representation, he should have been. When they again traded, the defendant's mare took the place of the mule, and why is not the measure of damages the difference between the value of the defendant's mare, which he substituted for the mule, as it was and as it should have been. The defendant's mare took the place of the mule, and in this way any damages for deceit in the exchange of the mule and $20 "to boot" for the plaintiff's mare were satisfied. If the mare, which was substituted for the mule in the trade, had answered the terms of the warranty or representation, the plaintiff surely could not recover damages for the first deceit, unless he had suffered some special loss in addition to the ordinary damages which result in such cases from the deceit or false warranty, as in Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. 696, 38 L. Ed. 810, where the warranty or representation was that certain rags, which the plaintiff sold to the defendant, were clean and in sanitary condition, and they turned out to be Infected with germs of smallpox, and consequently the disease broke out in the defendant's mill and spread among his employes, causing him great loss and damage, and the court held that the defendant was entitled to recover damages for the wrong commensurate with loss, either upon the warranty or the count for deceit, and in this connection Justice Gray, who wrote the opinion, said: "The damages recoverable for a breach of warranty, or for a false representation, include all damages which in the contemplation of the parties, or according to the natural or usual course of things, may result from the wrongful act. For instance, if a man sells hay or grain for the purpose of being fed to cattle, or such as is ordinarily used to feed cattle, and it contains a substance which poisons the buyer's cattle, the seller is responsible for the injury. French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Wilson v. Dunville, 4 L. R. Ir. 249, and 6 L. R. Ir. 210. 'So, if one sells an animal, warranting or representing it to be sound, which is in fact infected with disease, he is responsible for the damages resulting from a communication of the disease to the buyer's other animals, either in an action for tort for the false representation (Mullett v. Mason, L. R, 1 C. P. 559; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; Paris v. Lewis, 2 B. Mon. (Ky.) 375; Sherrod v. Langdon, 21 Iowa, 518; Marsh v. Webber, 16 Minn. 418 [Gil. 375]), or in an action on the warranty, either in tort (Packard v. Slack, 32 Vt. 9; Smith v. Green, 1 C. P. D. 92), or even In contract (Black v. Elliott, 1 Post. & Pin. 595. See, also, Randall v. Newson, 2 Q. B. D. 102)." There is no evidence now in this case of any damage of that kind and the ordinary rule prevails which may be thus expressed: The difference in actual value between the article as warranted and the article as delivered is all that can be properly recovered as damages, unless in exceptional cases of special damages. Whatever that difference in the actual circumstances of the case is shown to be is the true rule and measure of damages, where the articles delivered are not what the contract calls for. Marsh v. McPherson, 105 U. S. 709, 26 L. Ed. 1139.

While the court seems to have given the correct instruction in regard to the measure of damages—that is, the difference between the value of the mare, as represented by the defendant, and its real value—the jury were permitted, under the direction of the court, to assess damages as to both transactions, the first swap and the second or substituted one. This was error. The charge of the court is also very meager, and as to the deceit it omitted an essential element—the scienter. There was abundant proof of a scienter, but it was not correctly applied, if considered at all in the charge, and for that reason we have called attention to the law, as stated in former decisions of this court, and it will be well in such cases to be guided by them. The deceit in the first transaction, if established, will be evidence of the intent or scienter in the last, as the two are so closely connected with each other, and such evidence is admissible to show fraud in the second exchange, under the rule in Brink v. Black, 77 N. C. 59, and subsequent cases approving it. Gilmer v. Hanks, 84 N. C. 317; Coble v. Huftines, 133 N. C. 422, 45 S. E. 760. A case directly in point is State v. Weaver, 104 N. C. 758,...