19 Ala. 51 | Ala. | 1851
In Nelson v. Iverson, 17 Ala. 216, we held that when the object was to impeach a witness by showing that he has made declarations inconsistent Avith his testimony, it is not necessary in laying the predicate, that the language used by the witness should be stated, but the substance of what he is supposed to have said is all that .is required. In this case, the witness sought to be impeached was asked if at a certain time and place, which were particularly described, he had not stated to Walker and Blakely' that the mare was worthless at the time of the sale. To this, he substantially answered in the negative. The witnesses proved that he did not say she was worthless, but it was proposed to prove that he said she was of no value. This mere verbal difference did not render the proposed proof incompetent, and is fully covered by the case above cited. As to the relevancy of the proof, see Daniels v. Conrad, 4 Leigh, 401; 2 Phil. C. & H. notes, 772, et seq. As to the question of fraudulent concealment attempted to be raised by the charge asked by the counsel for the defendant below, and refused by the court, it is only necessary to say, that it applied to the vendor in requiring him not only to disclose that the animal was unsound, “ but the fullest extent of that unsoundness,” a more rigid exaction than the law makes upon him. Such particularity would require of the seller to enter into a minute history of the supposed disease, to describe with accuracy its different stages, and the symptoms attending it, which would tend greatly to impede the facilities of sales, and expose vendors to great insecurity and perils. While, however, the law does not require such particularity, yet in respect to intrinsic defects, such as materially affect the nature and condition of the property, which the purchaser could not by the exercise of proper diligence have discovered, and which were especially within the knowledge of the seller, the silence of 'the vendor wrould be considered a fraud,
As to the legal proposition involved in the charge given by the court, it ma}’- be sufficient for the future conduct of the cause to say, that the price agreed to be paid may be looked to by the jury as a circumstance, in connection with the other proof, in determining whether the purchaser was or was not advised of the latent unsoundness of the animal, if there existed any, and that he contracted with reference to such unsoundness. If the animal, had she been sound, was worth one hundred dollars, and the purchaser acquired her for ten dollars, this would bo a circumstance which would tend strongly to show that there was no imposition practiced on the seller. On the other hand, if by reason of intrinsic latent defects, she was worth only ten dollars, and the purchaser gave one hundred dollars, the folly of such a contract-would be so extremely gross as to tend when taken in connection with other facts in corroboration-'to establish a case for relief on the ground of fraud. Such fact, taken isolated from all others, would not justify a presumption of fraud. It is evidence in such case of mere folly and weakness, or want of judgment as to the value of the article, which it is said will not defeat a contract,'even in equity.-See Milner v. Cowley, 8 Price, 620; Prebble v. Boyhurst, 1 Swanst. 329; Oliphant’s Law of Horses, 84; 58 Law Lib. 87. We do not deem it necessary to go into a more critical examination of the charges. — See further on the subject, Ricks v. Dillahunty, 8 Por. R. 133. For the error in excluding the evidence of Walker and Blakely, the judgment must be reversed, and the cause remanded.
