47 Ind. App. 7 | Ind. Ct. App. | 1911
— Appellant brought this action against appellee to recover alleged damages sustained on account of the purchase of two mules at a public sale held by the appellee. The complaint was in three paragraphs, to each of
The ruling of the court in sustaining a demurrer to each of said paragraphs is assigned as error.
In the first paragraph of the complaint, in substance it appears that appellee in January, 1905, was the owner of certain personal property, including two mules, located in Warren county, Indiana, which he advertised for sale at public auction on a certain day, and said sale was had on that day; that prior to said sale he gave notice thereof in the newspapers published in said county, and by posters, wherein it was stated that said mules were eight years of age, when, in fact, they were respectively of the age of eleven and twelve years; that at the direction of appellee said sale was in charge of his son, who had full charge thereof, and full power to manage and control it as he deemed best, and to make such terms and conditions with the purchasers as he deemed best regarding the animals and property so sold; that appellant attended said sale, and appellee by his said agent, the latter having full authority so to do, warranted and represented to appellant that each of said mules was only eight years of age; that appellant was ignorant of the true age of said mules, and had no opportunity then and there to examine them and determine for himself the fact as to their age, but believing and relying upon said statements he was thereby induced to and did bid for and purchase said mules at and for the price of $295; that said agent’s statement regarding the age of said mules was not true, and he knew it was not true, and he made it for the purpose of deceiving appellant as to their true age; “that at that time said mules were not worth $295, but because
The third paragraph sets up practically the same facts as are exhibited in the first and second paragraphs, but with more care in its preparation. In addition it is alleged “that said defects in said animals, of blindness, lameness and the disease of stringhalt, were not patent and could
We next inquire what authority, if any, did appellee, either expressly or impliedly, confer upon his agent? This question is to be answered from the pleaded facts measured by the rules of pleading. Looking to each of the paragraphs, we find that the ages of the animals were misrepresented, not only by appellee in the way of public advertisements, but it is alleged “that the defendant by his agent” also made the same representation to this appellant. In the case of Gray v. Rich, supra, it was said: “If the defendant agreed to sell the plaintiff a certain article of prop
In addition to the allegation that appellee, by his agent, did the things charged as fraudulent and deceitful, it appears that said agent represented appellee in the business generally connected with the public sale of the property in question, including the exhibiting of the animals to prospective purchasers, and that appellant had no opportunity to examine them for himself until after the sale. From these facts and others appearing in each of the several pleadings, we think it sufficiently appears that the agent, at the time of the doing of the things and acts charged, was engaged in carrying out his principal’s business, pursuant to his real or apparent agency.
In this case it seems to us that the facts, although awkwardly pleaded, show that said agent was merely carrying out and communicating to the purchasers the will and scheme of appellee; and, if this be true, it does not follow that the agent was acting upon his own initiative, but with authority from appellee to do the acts and make the declaration charged in the complaint. For in all the principal allegations charging misconduct the form used is, “that defendant by his agent,” did, etc. If the agent was in fact acting under instructions from appellee, then it cannot be said that appellee was no more than silent and entitled to protection. If he be more than silent, either by acts, words or studied efforts to prevent others from learning the facts then known to him, which would lessen the value of the property he would sell, then the transaction would be tainted with fraud, and the purchaser entitled to his remedy. The demurrers should have been overruled.