Stevens v. Blood

• Decision Date: 04 February 1916
• Citation: 90 Vt. 81,96 A. 697
• Court: Vermont Supreme Court
• Parties: STEVENS v. BLOOD.

96 A. 697

90 Vt. 81

STEVENS

v. BLOOD.

Supreme Court of Vermont. Windham.

Feb. 4, 1916.

Exceptions from Windham County Court; E. L. Waterman, Judge.

Action by H. S. Stevens against E. E. Blood. From judgment for plaintiff, defendant excepts. Affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON,' POWERS, and TAYLOR, JJ.

Ryder & Graham, of Bellows Falls, for plaintiff. Barber & Barber, of Brattleboro, for defendant.

TAYLOR, J. The action is general assumpsit to recover a portion of the purchase price of a pair of horses sold by defendant to plaintiff. The price agreed upon was $525. At the time the horses were delivered plaintiff paid $200 by check, and gave defendant his note for $325, payable in three months at the People's National Bank in Brattleboro. The ground of recovery was fraud in the sale and subsequent rescission. The trial was by court with judgment for plaintiff.

At the close of plaintiff's evidence defendant moved for judgment in his favor, and also for nonsuit, upon the ground that plaintiff had failed to make out a case in that there was no evidence tending to show scienter, nor that the alleged representations were fraudulently made. The motions were severally overruled, and exceptions noted. Again at the close of all the evidence defendant renewed said motions and further moved for judgment in his favor upon the ground that plaintiff, having availed himself of the proceeds of the sale of the horses in question in part satisfaction of a judgment against him in favor of the People's National Bank, thereby affirmed the contract, and is estopped from maintaining the suit. These motions were severally overruled, and exceptions noted. Defendant attempted to raise the same questions by exceptions to the court's findings. Stripped of verbiage, the questions thus presented for review are:

(1) Was there evidence tending to show scienter?

(2) Is the plaintiff estopped from maintaining this suit by permitting the judgment against him in the bank's suit to be reduced by the proceeds of the sale of the horses?

Defendant argues the exceptions taken at the close of plaintiff's evidence; but by proceeding with his defense he waived them. However, we consider his argument as applied to the exceptions taken at the close of all the evidence, which present the same questions, though now affected by the evidence subsequently introduced.

Was there evidence tending to show scienter? Scienter implies knowledge; but to avoid a contract for fraud it is not necessary to prove that the party charged with fraud had actual knowledge of the falsity of his representations. Haphazard falsehood, intentionally passing off belief for knowledge, and fraudulent suppression of the truth, are of the same quality as conscious misstatement of facts, and furnish the element of knowledge required to make the false representation fraudulent. Slack v. Bragg, 83 Vt. 404, 76 Atl. 148; Hunt v. Lewis, 87 Vt. 528, 90 Atl. 578. Thus representations recklessly made as of one's own knowledge, without, in fact, knowing whether they are true, may be fraudulent. Adams v. Ladeau, 84 Vt. 460, 79 Atl. 996; Darling v. Stuart, 63 Vt. 570, 22 Atl. 634; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313; Wheeler v. Wheelock, 34 Vt. 553. If a person makes statements as of his own knowledge, when he knows that he has no such knowledge, but is stating only what he believes to be true, and the statements prove false, the transaction would be fraudulent. Corey v. Boynton, 82 Vt. 257, 72 Atl. 987; Johnson v. Cate, 75 Vt. 100, 53 Atl. 329. In such case he knowingly passes off his belief as knowledge of the fact stated, which supplies the necessary element of scienter.

Turning to the transcript, which is made controlling on this question, we find that there was evidence tending to show the following facts: Plaintiff was a grocer at Keene, N. H., and defendant conducted a livery business and dealt in horses at Putney, Vt. Plaintiff had a conversation with defendant by telephone concerning the horses in question, in which he inquired whether they were afraid of automobiles or anything else. Defendant replied that they were afraid of nothing. Plaintiff said that he wanted the horses to use on his delivery wagons, and defendant informed him that they were suited to that business. A meeting on the road between Putney and Keene was arranged. They met according to agreement and plaintiff examined the horses. He asked if they were afraid of automobiles, motorcycles, or electric cars. Defendant said they took no notice of automobiles; "they go right by them." Plaintiff asked if they would kick, to which defendant replied: "No, sir; you cannot make them kick." Plaintiff explained that he wanted the horses for use on his grocery teams, and asked if they would work single. Defendant said that they would work either way, single or double; that he had let them both ways. Plaintiff asked if they would stand with a weight, to which defendant replied that they would, and added: "Mr. Stevens, you need not be afraid to buy these horses; you take no chances. I warrant these horses just as I tell you." Thereupon plaintiff purchased the horses, and gave the check and note mentioned above.

Plaintiff and an employé took the horses to Keene, leading them behind a buggy. On the way they met an automobile; and, though the driver stopped, the horses were so frightened in passing it that they shied out to the limits of the highway. The next day plaintiff hitched one of the horses to a buggy, and found it so frightened at automobiles that he returned it to his stable. This horse was tried on a delivery wagon, and continued to show fear of automobiles, and was also afraid of motorcycles and electric cars. It would not stand with a hitch weight, but dragged it along the street The horse did not improve, and it was found impracticable to use it on the delivery wagon. The other horse, having shown signs of being afraid of automobiles, was placed in the hands of a horse trainer, who drove it on the streets of Keene in a breaking sulky. It showed a good deal of fear of automobiles; was what the trainer called "a green-acting horse." When it was attempted to drive it past an automobile, it would "buck" and try to kick. It would also kick in the stable at persons passing behind it on the floor.

Defendant had owned the horses about a year and a half before selling them to plaintiff, and they had been used in different kinds of work during that time. Defendant's evidence tended to show that they were safe and good to work, and had never done anything wrong while he owned them. There was no testimony of instances of such misconduct while defend...