Wintz v. Morrison

• Decision Date: 01 January 1856
• Citation: 17 Tex. 372
• Parties: JOHN R. WINTZ v. WESLEY MORRISON.
• Court: Texas Supreme Court

17 Tex. 372

JOHN R. WINTZ

v.WESLEY MORRISON.

Supreme Court of Texas.

1856.

Every misrepresentation with regard to anything which is a material inducement to a sale, which is made to deceive, and which actually does deceive the vendee, vitiates the contract of sale.

So also every concealment of defects by artifice, and for the purpose of deceiving the buyer, is a fraud which vitiates the sale.

Where the court instructed the jury that, if the seller of a herd of horses knows that they are infected with a contagious and malignant disease, and suppresses the information, and the buyer could not, before making the purchase, by such an examination as a careful man would make, discover the disease, the buyer is entitled to a rescission of the contract and to recover his damages, it was held that there was no error of which the seller could complain. It was not disputed that the buyer thought the horses were sound, and paid a sound price.

Where one sells a herd of horses which he knows to be infected with a malignant, contagious disease, and conceals the disease from the buyer, who buys in ignorance of the disease and for a sound price, the buyer may claim a rescission of the contract, and the measure of damages would be the money paid, with interest, and the value of the care, attention and expense of the buyer in preserving the herd; or, without demanding a rescission of the contract, the buyer may claim damages equivalent to the value of such as have died, and the difference between the present value of the living and the price paid for them, with interest on said sums from the date of sale; and also the value of the care, attention and expense of the buyer in preserving the herd.

Where one sells a herd of horses, or the like, which he knows to be infected with a contagious disease, and conceals the disease from the buyer, who buys in ignorance of the disease and for a sound price, the buyer in estimating his damages is not confined to the value of such as are proved to have been actually diseased at the time, but the disease is to be regarded as infecting the whole herd, to the extent proved up to the time of the trial; and it would seem that the seller is further liable to pay the damages done to other animals of the buyer to which, without fault on the part of the latter, the disease is imparted.

Where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, the judge in his charge ought not to assume that it is or may be doubtful. Such a course is calculated either to confound the jury, by causing them to doubt the justice of their own clear convictions, or to mislead, by inducing them to suppose they may find the fact either way, when the evidence warrants but one conclusion, and to find contrariwise would be to find manifestly against the evidence.

The rule which forbids the judge to charge upon the weight of evidence does not require or authorize him to assume as doubtful that which is clear and indisputable, or to assume hypotheses at variance with the certain fact. Where the evidence to a fact is positive and not disputed or questioned, it is to be taken as an established fact, and the charge of the court should proceed upon that basis. It is only where there may be doubt that the jury are required to weigh the evidence, and it is then only that the rule applies, that the court shall not charge upon the weight of evidence.

It would seem that where the seller has been guilty of fraud which vitiates the sale, it is not necessary for the buyer to tender back the property before suing for a rescission of the sale.

Where the plaintiff sues to rescind a sale made to him by defendant, on the ground of fraud, and prays that his notes given for the purchase money be delivered up to be cancelled and for general relief, and the defendant states in his answer that the notes have been assigned to a third person, and there is no evidence to the point on the trial, the defendant cannot complain that the court below took his allegation for true and gave judgment in favor of the plaintiff, under the general prayer, for the corresponding amount in money.

Appeal from Guadalupe. Tried below before the Hon. Thomas J. Devine.

Suit commenced October 4, 1854. The petition alleged that plaintiff Morrison in June, 1854, purchased of Wintz two hundred and thirty Mexican horses, for which he gave one thousand dollars in cash and his two notes for three thousand and twenty-five dollars and fifty cents, each, due at future days, to secure which he executed a mortgage on land and slaves; that the price paid and agreed to be paid constituted a full and ample consideration for said stock, had they at the time of the trade been perfectly sound; but that they were aboring under and suffering from an infectious or contagious disease of the most malignant character, a disease almost absolutely fatal in every instance where it becomes developed, called by some “glanders;” that it had been existing among the horses belonging to this identical drove for twelve months or more anterior to said trade, and had regularly up to the time of said trade killed off numbers of them; that the drove had been reduced by this disease from three hundred or four hundred to two hundred and thirty, sold to plaintiff; that since they came to the hands of the plaintiff, the disease has continued regularly its ravages, proving fatal in almost every instance, until their numbers are now reduced to about half their original number, and is at the present time in existence among the stock, and will, as the petitioner believes, kill every one of them before it ceases, and probably spread the infection or contagion among the horses of his neighbors; that at the time of the purchase, Wintz was well knowing to the fact of the existence of said disease among said horses, and had had full knowledge of its existence among them for many months anterior to the sale to plaintiff, and that he fraudulently and unfairly failed to communicate said facts to your petitioner, but concealed the same, and from his acts and declarations led petitioner to believe that he was purchasing sound property; that the disease was not visible among them as far as the plaintiff could discover; that plaintiff had separated the drove and done every thing in his power to arrest the disease, but without avail; that soon after the purchase Wintz left the state, leaving no agent to act for him, and that he is ready to return such of the stock as are living.

The plaintiff averred special damages and prayed an injunction; that the contract be set aside, that Wintz repay the petitioner with interest the money already paid; that the notes and mortgage be delivered up and cancelled, and that the plaintiff recover a thousand dollars for care and labor, and for general relief.

The defendant admitted the sale as alleged, but denied that said stock was diseased to the knowledge of the defendant; defendant further denies that he misrepresented the condition of said stock in any way, and defendant further says that he sold said stock in good faith to said plaintiff; that it is not true that he failed to disclose any and all he knew relative to said stock that would in any way concern said plaintiff in his said purchase. The answer commenced by denying every thing not afterwards admitted. The answer also alleged that the notes had been transferred to one Bean.

The evidence showed the purchase; that the stock was sold as a choice lot, for a sound price; that the defendant represented them sound, and when his attention was called to the bad appearance of some, and to one dead in the pen, said they had the distemper, but were getting over it; that one hundred of them were bought on defendant's representation, without being seen by plaintiff; that a few days after the sale they began to die a few at a time; that over a hundred had died; that plaintiff had sold some lots, but they came back on his hands; that the plaintiff and those to whom he sold had tried to cure them, but that the disease was incurable; that it was called white glanders and was contagious; a witness for defendant thought it was Spanish fever, or yellows, the symp toms being similar; that in September, 1854, plaintiff sent a letter to defendant, at Lavaca, which he got, tendering him back the stock, and demanding the return of the price, to which the defendant replied verbally to the person who carried the letter, that he would not take the stock back; that the balance of the stock was worth nothing; that the expense and care and labor of plaintiff was worth from eight hundred to one thousand dollars. That the drove infected the horses of a neighbor of the plaintiff, and there was evidence tending to prove that the defendant knew the horses were infected with said disease when he sold them, many of them having previously died of it. A fine horse which plaintiff had, caught the disease and died, and a neighbor of the plaintiff testified that he, witness, lost eight of his horses from the same disease, which they contracted by herding with the horses bought by plaintiff from the defendant. The testimony stated the facts up to the time of the trial.

The court instructed the jury that if A sell a drove of horses to B, and at or immediately before the time of sale, such drove of horses or any part of them be unsound, or have among their number any animal with an infectious or contagious disease, if such unsoundness or catching disease could be discovered by such an examination as a careful man would make under like circumstances, then the buyer cannot recover damages for the unsoundness.

But if Wintz knew of the disease, and suppressed this information, and Morrison could not, before making the purchase, by such an examination as a careful man would make, ascertain before purchasing that the animals were affected with an infectious disease of a malignant character, then the plaintiff...