Steinbach v. Bauclair
| Decision Date | 25 July 1917 |
| Citation | 164 N.W. 672,38 N.D. 223 |
| Court | North Dakota Supreme Court |
Rehearing denied October 5, 1917.
Action for the purchase of a horse. Counterclaim in fraud and deceit.
Appeal from the District Court of Eddy County, Honorable C. W Buttz, Special Judge.
Judgment for plaintiff. Defendants appeal.
Affirmed.
James A. Manly and Knauf & Knauf, for appellants.
The fact that defendant retains the property, or that it died in his possession, does not prevent him from recovering damages by reason of the breach of the conditions, as such knowledge is not a bar to the reliance on the warranty. Northwestern Cordage Co. v. Rice, 5 N.D. 432, 57 Am St. Rep. 563, 67 N.W. 298; Simonson v. Jenson, 14 N.D. 417, 104 N.W. 513; Andrews v. Peck, 83 Conn. 666, 32 L.R.A. (N.S.) 184, 78 A. 445, 21 Ann. Cas. 1000.
The defendants were clearly within their rights in pleading their damages and the whole thereof, even though the notes had not been paid and there was one still outstanding and unpaid. Fahey v. Esterley Mach. Co., 3 N.D. 220, 44 Am. St Rep. 554, 55 N.W. 580; Northwestern Port Huron Co. v. Iverson, 22 S.D. 314, 133 Am. St. Rep. 920, 117 N.W. 372.
Defendants are required to plead the total amount of their damages, and cannot plead the same into several actions. This action was brought when the first note became due, and defendants are entitled to have the total of their damages sustained on first cause and cannot split the same into several defenses, and in this defendants were clearly within the requirements of the law. Bowe v. Minnesota Milk Co., 44 Minn. 460, 47 N.W. 151; Jungnitsch v. Michigan Malleable Iron Co., 121 Mich. 460, 80 N.W. 245; Case Mfg. Co. v. Moore, 144 N.C. 527, 10 L.R.A. (N.S.) 734, 119 Am. St. Rep. 983, 57 S.E. 213; 23 Cyc. 1201.
A party has the privilege of keeping the property and suing for damages for breach of warranty, and the court cannot invade the province of the jury and in any manner determine for them the amount of damages they shall find except to limit the jury to the amount stated in the prayer for relief. Simonson v. Jenson, 14 N.D. 417, 104 N.W. 513; Spaulding v. Pitts, 26 S.D. 78, 127 N.W. 610.
Plaintiff refused to take back the stallion when tendered to him by defendants; and the horse, within the period allowed for such return, died, making it impossible to make return. Defendants cannot be held liable as for a failure to return. Lyons v. Stills, 97 Minn. 514, 37 S.W. 280.
One is not required to perform a useless act, and when plaintiff refused to take back the horse when offered to him by defendants within the allowed time, the law did not require defendants to perform further, and they should have been allowed to prove the worthless breeding qualities of the horse, and under these circumstances the court erred in refusing such offered proof. Ohio Thresher & Engine Co. v. Hensel, 9 Ind.App. 328, 36 N.E. 716.
In the sale of a horse the vendor may make both a false warranty and a false representation, and become liable to the vendee for the deceit and for the breach of warranty; and the vendee would correspondingly have two grounds of recovery, but would only be entitled to one relief in damages. The vendee in such a case can sustain an action based upon either right of action alone, or, since both arise out of the same transaction, he may base his action upon both grounds. Needham v. Halverson, 22 N.D. 594, 135 N.W. 203; Murphy v. McGraw, 74 Mich. 318, 41 N.W. 917; Humphrey v. Merriam, 39 Minn. 502, 35 N.W. 365; Larson v. Calder, 16 N.D. 248, 113 N.W. 103.
The court charged the jury to disregard the solemn and express warranty of soundness made by plaintiff; not to give defendants the benefit of the breach of contract, the court wholly failing to recognize the two elements of the defense--one on contract of warranty or arising on contract, and the other on tort for false representations and deceit and fraud. This was error for which a new trial should be granted. Needham v. Halverson, 22 N.D. 594, 135 N.W. 203; Humphrey v. Merriam, 37 Minn. 502, 35 N.W. 365; Murphy v. McGraw, 74 Mich. 318, 41 N.W. 917.
Rinker & Duell, for respondent.
While an action of fraud and deceit may be joined with an action for breach of warranty, an action for fraud and deceit may lie where there would be no action for breach of warranty, and the court adopted the correct theory when the jury was instructed to the effect that they had nothing to do with the matter of warranties, but only with reference to the defendants being induced to make the contract through fraud, deceit, and false representations on the part of plaintiff. McQuaid v. Ross, 77 Wis. 470, 46 N.W. 892.
Where property is sold under written contract containing express warranties as to certain matters, no other warranties can be implied, nor can evidence of other warranties be offered. DeWitt v. Berry, 134 U.S. 306, 33 L.Ed. 896, 10 S.Ct. 536; J. I. Case Plow Works v. Niles & S. Co., 90 Wis. 590, 63 N.W. 1013; Davis v. Iverson, 5 S.D. 295, 58 N.W. 796; Sockman v. Keim, 19 N.D. 325, 124 N.W. 64; Hitchcock v. Gothenburg Water Power & Irrig. Co., 4 Neb. (Unof.) 620, 95 N.W. 638.
Fraud is never presumed, but must be pleaded and proved. The proof must be clear and distinct. New York L. Ins. Co. v. Davis, 96 Va. 737, 44 L.R.A. 305, 32 S.E. 475; Ely Walker Dry Goods Co. v. Smith, Okla. , 160 P. 898.
"If from the entire evidence on the subject good faith or honest mistake may be as rationally and reasonably inferred as fraud, then the law leans to the side of innocence.' Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667; Webb v. Darby, 94 Mo. 621, 7 S.W. 577; 9 Decen. Dig. "Fraud," Key No. 58 (1) and (2).
On the sale of a stallion where the seller gives to the purchaser all information at hand concerning such horse, statements made in such manner do not constitute fraud and deceit. McCabe v. Desnoyers, 20 S.D. 581, 108 N.W. 341.
The evidence fails to show that plaintiff knew anything concerning the horse which, if it had been communicated to defendant, would have destroyed the inducement which led defendant to buy. Webb v. Darby, 94 Mo. 621, 7 S.W. 577; Davis v. Iverson, 5 S.D. 295, 58 N.W. 796.
There was no tangible evidence of fraud, deceit, or misrepresentation. Sockman v. Keim, 19 N.D. 325, 124 N.W. 64, and cases cited; Davis v. Iverson, and McCabe v. Desnoyers, supra; Fitzhugh v. Nirschl, 77 Ore. 514, 151 P. 735.
If defendant's evidence does not disclose misrepresentation, fraud, or deceit on the part of the plaintiff, erroneous instructions on that subject, or on other subjects in the case, would not amount to prejudice, for defendants can recover only on the theory of fraud and deceit. South Omaha v. Fennell, 4 Neb. (Unof.) 427, 94 N.W. 632; Braddock v. Louchheim, 87 F. 287, 34 C. C. A. 684, 94 F. 1021.
Upon a sale of personal property under a conditional warranty, and providing for a return of the property, a return is necessary before suit, as in the contract provided. Simonson v. Jenson, 14 N.D. 417, 104 N.W. 513.
The point of time to which the evidence must be directed is that of the date of which the contract of warranty was made. The object of evidence must always be to show the condition at the time of the sale. 2 Enc. Ev. 611.
Plaintiff disclosed to defendants the basis of his information and knowledge as to the horse. This refutes the idea of fraud and deceit. McCabe v. Desnoyers, supra.
One who impugns a transaction as fraudulent is not sustained by his own assertion alone in case he is disputed, but has the burden of making his allegation good by independent evidence. Hutchinson v. Poyer, 78 Mich. 337, 44 N.W. 327.
The jury having found the defendants were not entitled to recover anything, an erroneous instruction in this connection would be harmless. Fitzhugh v. Nirschl, 77 Ore. 514, 151 P. 735; 2 Decen. Dig. Appeal and Error, Key No. 1068; South Omaha v. Fennell, supra; Sockman v. Keim, 19 N.D. 325, 124 N.W. 64; McCabe v. Desnoyers; Davis v. Iverson; and McQuaid v. Ross,--supra.
Statement of facts by BRUCE, Ch. J.
This is an action to recover on two promissory notes, each for the sum of $ 400. The answer is a qualified, general denial. It admits the execution of the notes. It alleges that, in addition to the two notes mentioned, the defendants at the same time executed still another for the sum of $ 350, and paid the plaintiff the further sum of $ 350 in cash. All of this, defendants allege, was in payment of a certain French draft stallion named "Tapen." It then alleges: "That said plaintiff warranted and represented to these defendants said stallion to be in all respects sound and healthy, a good breeder, and in good breeding condition; that these defendants expressly relied upon said warranties and representations in all things and believed the same, and that by reason of said warranties and representations so expressly made by said plaintiff, these defendants executed and delivered the notes aforesaid and paid said plaintiff the sum of $ 50.
"That said horse was not sound or in good health, and was not a good breeder, and that it was at the time of said sale suffering from a disease of the throat known as acute laryngitis, and suffering from the disease of the legs known as sidebones, and that said stallion was not a good breeder and was of little or no value for breeding purposes or otherwise, and that said plaintiff further represented the said horse to be of the value of of $ 1,200, but that by reason of his diseased condition, his unsoundness, poor health, and that he was a poor breeder, said horse was valueless and of no value whatsoever, and that by reason thereof said defendants...
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