Williamson v. Brandenburg

• Decision Date: 16 December 1892
• Parties: WILLIAMSON et al. v. BRANDENBURG.
• Court: Indiana Supreme Court

133 Ind. 594

32 N.E. 834

WILLIAMSON et al.

v.BRANDENBURG.

Supreme Court of Indiana.

Dec. 16, 1892.

Appeal from circuit court, Delaware county.

Action by Sandford Brandenburg against William H. Williamson and others on a promissory note and account, in which defendants filed a cross complaint for damages on account of fraudulent representations of the plaintiff in the sale of a horse to defendants. From a judgment for plaintiff, defendants appeal. Ordered certified to appellate court.

Gregory & Silverburg, for appellants. Frank P. Foster, J. F. Duckwall, and J. N. Templer, for appellee.

Olds, J.

The appellants and the appellee traded horses, the appellants receiving from the appellee a stallion valued at $310, in exchange for which they gave appellee another horse, valued at $125, $35 cash, and their note for $150. The appellee brought this suit on the note, and there being some question as to whether or not the note was valid by reason of having been or claimed to have been delivered on Sunday, a second count was added to the complaint, on an account for the $150 difference agreed to be paid between the value of the horses.

The appellants filed an answer and cross complaint. The cross complaint alleges the exchange of horses, the taking of the stallion at an agreed price of $310, the payment in trade and cash, $160, and the giving of the note for $150. It then alleges fraud in the transaction on the part of the appellee. The averments were held by the circuit court to be sufficient, and as stating a good cause of action, entitling appellants to some damages; and numerous items of damages are alleged in the cross complaint, and a final prayer for judgment against the appellee for $1,200.

Among the items of damages alleged are $100 for money paid out for doctoring, treating, and caring for the horse; for services in caring for the horse 50 days, $100; for services for a person to take charge of and manage the horse during the breeding seasons of 1888 and 1889, $100; and alleges that if he had been sound, and a sure foal getter, he would have served 100 mares at $10 each, and gotten them with foal, and earned $1,000. It is finally alleged in conclusion that, if said stallion had been sound, free from disease, a sure foal getter, 5 years old, and could have trotted a mile in 2 minutes and 49 seconds, as the appellee represented him, he would then and there have been worth $310, but, in the condition he was in fact in. he was worth nothing. Various motions were made, and the case finally put at issue by a reply, and a trial had, resulting in a verdict and judgment in favor of appellee for $169.22.

The measure of damages properly averred in the cross complaint, and for which appellants may have been entitled to recover on proper proof does not amount to $1,000, nor do they, together with the amount appellee was entitled to recover, reach that amount. It is not necessary for us to determine with certainty the measure of appellants' damages in case they were entitled to recover, but it is certain that the principal item of damages would be the difference in the value of the horse as he was in fact and as he was represented by the appellee. The appellants would have the benefit of their contract, and be entitled to recover the difference in the value of the horse as he...