Sockman v. Keim

• Decision Date: 10 December 1909
• Parties: SOCKMAN v. KEIM et al.
• Court: North Dakota Supreme Court

19 N.D. 317

124 N.W. 64

SOCKMAN

v.KEIM et al.

Supreme Court of North Dakota.

Dec. 10, 1909.

Syllabus by the Court.

Respondent purchased two mares from appellants. The evidence shows that one of them had the glanders at the time of the purchase, and had knots on her head and neck. In response to a question by respondent, as to what caused the knots, appellant Philip Keim said she had a cold, and also said: “For all that I know, she is just as sound as the others.” The other mare was sound. Held not a warranty. Held, further, that, if respondent is entitled to recover at all under the complaint and evidence in this case, it is for fraud and deceit.

Fraud or deceit in the sale of personal property may be perpetrated either by false representations, or by concealment of unsoundness in the article sold.

The party alleging error must show it affirmatively on the record.

Appeal from District Court, McLean County; W. H. Winchester, Judge.

Action by Jakob Sockman against John P. Keim and Philip Keim. Judgment for plaintiff, and defendants appeal. Reversed.Hyland & Nuessle, for appellants. F. J. Newman and Newton & Dullam, for respondent.

CARMODY, J.

This is an action for damages for breach of warranty of soundness and for fraudulent representations on the sale of a team of mares by the defendants to plaintiff. The complaint charges: That the defendants warranted and represented to the plaintiff that said mares and each of them were in all respects sound and well. That plaintiff relied upon said warranty and representations, and purchased said team of mares from the defendants for the sum of $275. That at the time of said warranty, representations, and sale the said mares were not sound and well, but one of them was suffering from a dangerous and equine disease known as “glanders,” which fact defendants well knew, or had reason to know, at the time they so sold and warranted said mares, and said warranty and representations were false and were made with the intention of deceiving said plaintiff and to induce him to purchase said mares, and he was deceived and defrauded because of the falsity of said warranty and representations. That said mare infected four other of plaintiff's horses with said disease; said four other horses being of the value of $550. That plaintiff was forced to kill said mare and said four other horses because of said disease. The plaintiff asked judgment for one-half the price paid for said team, $137.50, for $550 the value of the four other horses killed, and for $150 for labor and expense in the care of said horses. The defendants, each by separate answer, denied each and every allegation and each and every portion of said complaint. At the commencement of the trial, defendants objected to the introduction of any evidence for the reason that the complaint did not state facts sufficient to constitute a cause of action, which objection was overruled. Defendants then made a motion that the plaintiff elect which cause of action he would stand on, whether for breach of warranty or false representations; one being ex contractu and the other ex delicto. The motion was denied, and the defendants excepted. On the trial of the case it was shown without evidence to the contrary that respondent purchased the team of mares for $275 on the 12th day of January, 1904.

Respondent testified that on the 11th day of January, 1904, he and one Gottlieb Filler, desiring to buy horses and while driving in company with one Peter Schauer, met defendant Philip Keim, who, in answer to a question by Schauer, said he had horses to sell. They then drove to Phillip Keim's place, and reached there about 4 o'clock in the afternoon, and looked at the horses. Respondent found two that he thought suited him-one gray and one brown. They came to an understanding as to the price of the two mares, $275. Defendants were to bring the horses to Turtle Lake the next morning, and, if they suited respondent, he would buy them and make the papers. Defendants brought the horses to Turtle Lake the next morning, and said to respondent in the presence of Gottlieb Filler, Andreas Bossert, and his boy: “Here are the horses. If they suit you, you can take them.” Plaintiff and the parties with him examined the horses, found that the gray mare had little knots around the head and neck. The knots were a little larger than wheat kernels. Plaintiff asked Keim what was the matter with the gray mare that she had these knots. Keim said that she had a little cold, and then said, “For all that I know, the mare is just as healthy as the others.” The other mare that plaintiff was about to buy from Keim was healthy, and has been well and all right ever since. Plaintiff believed what Keim stated to him in regard to the gray mare being, for all Keim knew, as well and healthy as the others; did not know what was the trouble with the gray mare. Plaintiff gave Keim Bros. a note for $275, payable in the fall, secured by a mortgage. Plaintiff took the team home. The bunches on the mare's head and neck became larger, broke open, and never healed. He thought the mare had a cold; did not know anything of glanders at that time. Later he found that it was glanders. About a week after he purchased the team, he had Schaefer, a neighbor, come and look at a lame horse. Plaintiff worked the mare a little in the spring. On May 10th she had a colt, which lived about a week. In the spring of 1904 he saw the defendants Keim in Ram's store in Turtle Lake, and told them that Schaefer said the mare was glandered. Defendant said: “If Schaefer says that, he says that out of envy to us. He is envious of us.” Both defendants were there in the store. Plaintiff told them at that time that, if the mare was glandered, he would bring her back. They said the mare was not glandered; it was only a cold. Then he let the matter rest and went home. On May 15, 1905, he shot her. That, if the mare had been sound and well when he bought her, she would have been worth $150. That the mare communicated the glanders to four other horses of the value of $600, which four horses had to be killed. That the work and expense of taking care of the glandered horses was $300. That Dr. Robinson, a veterinary surgeon, district veterinarian for that district, ordered him to kill three of the horses. The other two he killed without the doctor's orders. John Keim came to Philip's place on the evening of January 11th and brought the brown mare, knew at the time where John Keim lived. Philip Keim's hired man brought the brown mare. It was dark on the evening of January 11th when they were at Philip Keim's place. Schaefer told plaintiff, when at his place looking at a lame horse, that the gray mare had glanders, but plaintiff did not believe him, because the defendants said it was not glanders. Jacob Bossert testified for plaintiff that he was present in Turtle Lake on January 12, 1904, saw that the gray mare had knots or lumps on the neck and head. Plaintiff asked Keim what she had. Keim said she had taken cold. Plaintiff said he did not know, did not think it was a cold, thought the mare was sick. Keim said: “No, sir; I know the mare is just as sound as the other one.” Plaintiff then believed him. Gottlieb Filler testified that he was present at Turtle Lake on January 12, 1904, when plaintiff purchased the team of horses from the defendants. Witness saw the team and looked at them closely.The gray mare had sores and knots on the head. Plaintiff asked what was the matter with the head of the mare. Philip Keim answered that it was a cold. Plaintiff asked whether that would not harm the mare, and Philip Keim said, “I know the mare is just as sound as the other two.” Then they made the papers. Emanuel Hoffer, who had considerable experience with horses, testified as to the gray mare and the other horses that were killed, having glanders.

Karl Schaefer testified to the same thing.

Andreas Knobloch testified: That he was working for Philip Keim on January 11, 1904, knew the gray and brown mares in question. That Philip Keim sent the witness into the barn to bring out the gray mare at that time. He loosened her from the manger. Keim then took her away and said she had knots; that he did not have her very long and she was spoiled already. He said if Sockman saw the knots he would not buy her, and that he did not care if Sockman would not buy her. He could leave her.

John W. Robinson, a veterinary surgeon of Coal Harbor, testified that he was called to respondent's place during the summer of 1905, found glanders there, ordered plaintiff to kill two horses that he found affected with glanders, and afterwards ordered another one killed. He was the district veterinarian for that district.

On the part of the defendants Philip Keim testified that he sold the horses to the plaintiff; that his brother John owned the brown mare; that he went good to John for the price of the mare; and that John had nothing to do with plaintiff. Defendants took the team to Turtle Lake, where they found the plaintiff, who said to make out the papers. Witness told the plaintiff to look at the horses once more. They went into the barn, looked at the horses. Plaintiff was well pleased with the team, was going to pay for them in the fall. Witness said plaintiff could have three or five or maybe ten days to try the team, and, if they did not suit him he could bring them back. Plaintiff said that was satisfactory, and they made the papers. Jacob Keim, defendant's brother, made them out. Witness told plaintiff that he knew nothing wrong with the gray mare, denied that there was any talk of lumps, and denied that the mare showed any; said that he had been trading in horses for about seven yeàrs; had never had any experience with glandered horses up to the time that he sold the gray mare; owned her about six days; bought her from his brother Jacob who owned her for nine or ten months, had one mare who was supposed to have glanders, shot in ...