Appellee filed this suit against appellants for the rescission of a sale of alleged diseased cattle amounting to 316 head, for which appellee paid the sum of $23,700, being induced to purchase the same upon the false and fraudulent representations that the cattle were sound and healthy at the time of sale, but in truth and in fact they were at the time of sale suffering from an infectious and contagious disease known as Texas or tick fever, which fact was well known to appellants at the time, but was not communicated to appellee, and, at the time of the purchase, appellee, relying upon the false representations so made to him, and believing the same to be true, that they were sound and healthy cattle, purchased and paid said sum of money in cash for them. That appellants intended to and did deceive the appel-lee, and induced him thereby to purchase said cattle, knowing such representations to be false and material, induced appellee to rely upon such representations in the purchase of said cattle.
That said purchase was made on or about *311 the 4th day of December, 1919, and on or about the 10th day of December, 1919, appel-lee discovered that a number of said cattle had died and others were sick and drooping. He secured the services of a veterinary surgeon to examine them, whereupon it was discovered they were not sound and healthy cattle, but were diseased and suffering from Texas or tick fever. Being so advised, appel-lee promptly notified appellants, rescinded the sale, and tendered to appellants the cattle so purchased, and demanded from them the return of the purchase money paid. The appellants refused to accept the return of the cattle, and refused to refund the purchase money. Upon the refusal to rescind the sale and receive the cattle and the refusal to return the purchase money so paid, appellee notified appellants that he would be compelled to and would handle said cattle for appellants’ account and hold appellants liable for all damages and losses that might be sustained by reason of appellants’ fraud and deceit in selling said cattle to him and refusing to take them back and refund the money paid for them.
Appellee alleged that 16 head of said cattle died from said disease and the remainder depreciating so in value on account of. said disease until they were not worth exceeding $70 per head, "for which price he sold the live ones about March 25, 1920, and delivered the same to the purchaser about April 15, 1920, and that such price was a reasonable price.
Appellee prayed for a rescission of the contract ; for the recovery of the purchase price of $23,700 paid appellants for said cattle, with interest from December 4, 1919, to date, less the sum of $18,482.17, the amount received by appellee for said cattle, less the cost and expense of pasturing, looking after the cattle from the date of the purchase until their sale, for whiph appellee received $20,-540.40 as the entire purchase price. The reasonable value of the expense of pasturing, labor, and caring for said cattle, including $750 to appellee for his time, was $2,023.23.
Appellee further prayed, because of appellants’ willful fraud, he was required to bring this suit and to employ an attorney at law at an additional expense of $500 for which he also prayed judgment.
Appellants filed their answer, containing exceptions, general and special, and by proper answer denied, traversed, and responded to every allegation of appellee’s pleading.
The court overruled all exceptions presented by appellants, which rulings were properly excepted to, and the objection preserved in the record. The case was tried with a jury upon a general charge of the court, but the court, in connection therewith, submitted one special instruction requested by appellee, and refused all special charges requested by appellants. A verdict was returned by the jury in favor of appellee for $6,120.56 against appellants, and for which amount the court entered its judgment in favor of appellee.
The first question raised and presented by appellants is that this suit was improperly brought and maintained, and that the court erred in not sustaining appellants’ exception to the petition, for the reason the suit for the rescission of the contract was not the proper remédy for one who has bought cattle and paid for them, >and disposed of said cattle, rendering it impossible for the parties to be-placed in statu quo, the proper remedy being a suit for damages with affirmance of the contract. This point is presented in various forins in a lengthy brief, as well as in a supplemental typewritten brief.
“The person with the property thus left in his possession, on the other’s refusal to receive it, in fact holds it in the character of a bailee, and he must use all reasonable care to make the other party’s loss as light as possible, and must not willfully allow the property to •deteriorate or be destroyed, although he has the right to do any acts in regard to the property reasonably necessary to protect his own interests, and at the same time maintain his claim to rescind. But he cannot keep the property for an indefinite time thereafter and recover from the other party the expense of so keeping it.”
To the same effect is the law expressed in Williston on Sales, § 603.
When the seller refuses to receive, the goods thus tendered, it is the duty of' the purchaser to take such measures as are expedient to save unnecessary loss to the seller, “and if the best method to accomplish this end is to sell the goods (as in case of perishable goods) he may sell them for the best price obtainable and retain out of the proceeds enough to reimburse him for necessary expenses, and hold the balance subject to the vendor’s demand.” Black on Rescission and Cancellation, vol. 2, § 629.
When, after a proper tender of the property by the buyer, the seller refuses to accept it, the buyer has the right to handle and dispose of it as may be reasonably necessary to protect his interests and still maintain his rights to rescind. Jessop v. Ivory,
“It is objected that there was no tender of the horses to the defendant at his place of residence. Such tender was not necessary to entitle the plaintiff to recover his damages, nor was it necessary to entitle him to a rescission of the contract that he should have offered to restore the property, it having been proved and found by the jury to be utterly worthless. But if such offer was necessary, it was made; the defendant did not object to the manner of it, but positively refused to take back the property. More could not be required of the plaintiff.”
• We overrule all the assignments raising that issue, for the reasons staled, and likewise overrule all the assignments directed to the action of the court in passing upon the special exceptions directed at the petition or to any part thereof. The petition is good against both the general and special exceptions.
There are a number of propositions sub■mitted, presented and urged in certain assignments, in a general way, to the charge of the court, but portions of which in some cases complained of are not always set forth, which renders it difficult to intelligently pass upon such propositions.
In disposing of many assignments, without naming them, they being on questions of fact, we wish to say, as was said in Wintz v. Morrison, supra, all the matters “of the disease, the knowledge, concealment and misrepresentations of the defendant, the fraud practiced, the value of the property, and the damages actually sustained, were questions for the jury, on which they have passed, and their verdict is well supported by the evidence.” As the issues in the two cases are so much alike, we adopt that language as appropos here.
“ ‘The maxim of caveat emptor seems gradually to be restricted in its operation, and limited in its dominion, and beset with the eircuin-vallations of the modern doctrine of implied warranty, until it can no longer claim the empire over the law of sales, and is but a shadow of itself. Of course, if there be any fraud, or gross mistake in the case, the contract of sale would be thereby completely annulled.’ * * * ‘Gradually the old common law rule of caveat emptor has been losing ground, and the law has been tending towards the doctrine of the Roman law, which is its antipode — caveat venditor — until it now occupies a middle ground between the two, by requiring the strictest good faith on the part of the seller in all that he says and does, and throwing on the buyer the responsibility for any foolish mistakes, or wrong conclusions, which may result from his trusting to his own judgment.’
“In respect to the measure of damages, the court adopted the general rule in actions by the vendee for the breach of warranty; that is, the difference between the price paid and the worth of the article at the time of delivery with its defects and vices. But if the vendee has sustained other additional injury, which is either the immediate consequence of the failure of the vendor to perform his contract, or a material incident thereto, he may recover such damages. Story on Sales, § 453. The plaintiff, however, was only allowed the benefit of the latter proposition, as to consequential damages, to cover the expense of taking care of the horses. The recovery was restricted by the charge, and was in fact confined to the actual loss which the plaintiff had sustained in the horses sold him, and compensation for the necessary care and attention bestowed upon them; and though there was evidence of other damage, it was not allowed.”
Further on in the same case, the court cites the case of Jeffrey v. Bigelow (
“The plaintiff is entitled to such damages as necessarily and naturally flow from the act of the defendants. That damage is not the mere difference between a diseased sheep and a healthy one, but the damage sustained by communicating the disease to the plaintiff’s flock. * * * If a person sells me a cow, which he knows to be affected with a contagious distemper, and conceals this disease from me, such concealment is a fraud on his part, which renders him responsible for the damage, and I suffer, not only in that particular cow, which is ’the object of his original obligation, but also in my other cattle, to which the distemper is communicated; for it is a fraud in the seller which occasions this damage.”
It is held in Haldeman v. Chambers,
“It seems to be settled in this state that in actions of this character it is not necessary to aver or prove that the defendant knew, at the time he made the representations, that they were false. It is sufficient to allege and prove that they were untrue in fact, and that the plaintiff believed them, and relied thereon, and was induced thereby to make the purchase; and it would make no difference whether the party making them did not know at the time whether they were true or not. Mitchell v. Zimmerman,4 Tex. 80 ; Wintz v. Morrison,17 Tex. 383 ; Henderson v. Railroad Co., Id. 577; Culbertson v. Blanchard,79 Tex. 492 ,15 S. W. 700 ; Loper v. Robinson,54 Tex. 514 .” Joy v. Bitzer,77 Iowa, 73 ,41 N. W. 577 , 3 L. R. A. 184.
*314 “ * * * If the buyer does not know that the cattle are unsound or suffering from disease, then the buyer has the right to rescind said sale and tender back the cattle, and recover the purchase price paid therefor, even though the seller made no representation as to the soundness of the cattle or their freedom from disease; and if the buyer in either event rescinds said sale and tenders back the cattle, he is entitled to recover, of the seller the amount paid for said cattle, with interest thereon from the date of such payment until the return of said money, and if the seller refuses to take back said cattle, it then becomes the duty of the buyer to handle said cattle with ordinary care until they can be sold, and upon said sale, the seller will be entitled to the amount received for said cattle after deduct: ing therefrom the reasonable value of the keep of said cattle between the date of said original'purchase and their sale by the purchaser, including the reasonable value of pasturage and the wages of employés engaged in caring for the cattle, and also including the value of his own time, if any, spent in caring for said cattle.”
And further on in his charge said:
“ * * * And if you further believe from the evidence that the plaintiff did not know that the cattle were suffering from said disease at said time, and that on or about December 12," 1919, the plaintiff ascertained that fact, and thereupon so informed the defendants, and offered to deliver back said cattle to defendants, and demanded the return of his money paid therefor, and that defendants refused to rescind said sale and take back the cattle and return to plaintiff the purchase money he paid for them, and that plaintiff thereupon put said cattle upon pasturage, and looked after the same, and that on or about April 15th, 1920, sold said cattle (excepting any that had died), and that said sale by him was for the best price which plaintiff could secure for said cattle, and was a reasonable price for them in their condition at the time of said "kale, and was a lower price than he paid defendant for them, and that plaintiff incurred expenses in earing for said cattle at the time they were in his possession, then you will return your verdict for plaintiff for the amount which he paid defendants for said cattle, with 6 per cent, interest thereon from the date of such payment to April 15, 1920, less the amount which plaintiff received for said cattle when he sold them, after deducting from the latter amount the reasonable expenses for pasturing, caring for, and lopking after said cattle, and the value of his own time, if any, spent in looking after said cattle and caring for the samé from the date of their delivery to plaintiff until said sale; and interest at 6 per cent, per annum on the balance so found by you from the 15th day of April, 1920, to this date.”
We can find no fault with this charge, it is without error, and is a fair and correct submission of the issues to the jury for their direction and government.
It would have been error for the court, as urged, to have confined the jury to find, or limit them to find, damages only to animals which showed signs of the disease at the time of the sale. The disease might not have been apparent in the cattle at the time, and the jury found it was not, but it developed later, either killing some of them or depreciating their value.
This is a case in which the jury, under the evidence, were authorized to conclude, in the absence of any intervening cause, that in a little while after the sale a considerable number of the herd were suffering from Texas fever, w'hich would not perhaps manifest itself then, though the cattle had the fever at the time of the sale.
When the false statement is made by way of inducement, even though by inspection and inquiry the purchaser might have ascertained the falsity, the seller cannot defend against his fraud by saying, You inspected for yourself and should have discovered my representation to be fraudulent Schouler on
*315
Sales, vol. 2, p. 604; Bank of Woodland Hiatt,
“It is not necessary for the vendor of cattle to know the same are unsound in order to make such vendor liable on a warranty of unsoundness.”
This charge is rather carelessly expressed. We presume it was meant to say a warranty of soundness. This seems to be directed at appellants’ contention that if they acted ’innocently they were not chargeable with fraud. We do not think any injury resulted from appellee’s requested special charge in using the word “warranty” instead of “misrepresentation” or “fraud.” The jury would perhaps not understand any technical distinction between the words, and hence the charge was harmless. The judgment could be sustained on the manifest fraud in fact independently of the supposed warranty. Hubby v. Stokes,
“It has often been ruled, in this state and elsewhere, that fees of counsel, incurred in prosecuting a suit for or defending against a wrong, are not ordinarily recoverable as actual damages, because they are not considered proximate results of such wrong. Landa v. Obert,45 Tex. 547 ; Railway Co. v. Oram,49 Tex. 346 ; Findley v. Mitchell,50 Tex. 147 ; Railway Co. v. Wave,74 Tex. 50 ,11 S. W. 918 ; Flack v. Neill,22 Tex. 253 . In cases where the wrong consists of a malicious act, or the perpetration of a fraud, in which punitory damages are claimed, evidence of such losses is admissible to be considered by the jury in determining the amount which should be allowed as such damages.”
See, also, the case of Closner v. Chapin (Tex. Civ. App.)
We have considered every assignment of error presented, all contentions thereunder, and they are all overruled. As appellee'has indicated his willingness to remit the item of $500 recovered as attorney’s fees, the judgment of the trial court is affirmed for the sum of $5,620.50, with interest from the date of the judgment in the trial courts
<§nwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
<§rroFor.other cases see same topic and KEY-NUMBER in all Key-Nuinbered Digests and Indexes