Bryant v. Pember

45 Vt. 487 | Vt. | 1873

The opinion of the court was delivered by

Peck, J.

The charge of the court, “ that if the cow was worthless as a cow ; if,- in point of fact, H. A. Bryant conveyed no value to Pember by the sale of the cow to him ; there was no consideration for the note, and that would be a defense,” treats the simple fact that the cow, by reason of a disease upon her at the time of the sale, was at that time worthless, as constituting a want of consideration which avoids the note. An entire want of consideration, or an entire failure of consideration, is a good defense to the entire note. The question is, whether the facts which the jury were required to find in order to find a verdict for the defendant, constitute either a want, or a failure, of consideration, within the meaning of th¿ rule of law on this subject. Nothing appears in this case to take it out of the general rule, that in the purchase of a chattel, with no warranty or fraud on the part of the seller, it is.at the risk of the buyer as to defects and unsoundness. In such case, whether the seller has received the price, or not, from the buyer, and the article kirns out to have been unsound or defective at the time of the sale, even to the extent of rendering it worthless, the seller is not liable in an action for damages, or to recover back the price paid. If the stipulated price has not been paid, and the seller brings an action to recover it, the same rule applies as to which party should bear the loss resulting from such defects or unsoundness. So far as the article fails from a defect which is at the risk of the seller —as the want or failure of title of the seller, as to which there is an implied warranty on his part — so far there is a want or failure of consideration. But if the failure of the article is by reason of a defect as to which the buyer takes the risk, there is no want or failure of consideration, in the legal sense of the rule, even if thereby the article is rendered worthless; as the buyer in such case gets and retains what he bought, that is, the property at his own risk as to such defect. The charge of the court was erroneous in this, that it treated the fact that the cow was worthless at the time of the sale, as a want or failure of consideration, and a defense tp the note given for the stipulated price, without fraud or warranty on the part of the seller. The plaintiff was entitled to a charge on this point substantially according to the first proposition in his request.

As to the exception to the admission of the testimony objected to, the evidence offered and admitted appears to have been of a general and very indefinite character. Proof that the pair of horses, which EL A. Bryant gave in exchange for a mare and the cow, “ was of small value f is too indefinite to warrant an inference that he knew the diseased condition of the cow. They might be of small value, and yet not sufficiently so relatively to warrant such inference. The evidence as stated fall’s far short of showing that he bought the cow at a price so trifling as to furnish evidence that he knew her diseased condition. We do not, however, intend to say that there might not be such a wide difference between the price paid, and the value if sound and free of fault, as to render the evidence admissible as a circumstance.

Under the exception to the charge, the defendant’s counsel make the further point and claim, that whatever the law may be in relation to the necessity of proof of a warranty or fraud on the part of the seller, to constitute a defense to an action for the stipulated price, still, in this case there is no error in the charge of which the plaintiff can' complain, insisting that it was correct as applicable to the third plea, which does not allege either a warranty or fraud on the' part of the seller; claiming that the jury under the charge must have found the third plea proved. But this proposition is not tenable, as the third plea contains the allegation, among other things, that “ in said sale, said Hiram [the seller] represented said cow to be a good cow, and all right.” The charge of the court did not require this fact to be found by the jury in order to warrant a verdict for the defendant., This is a material allegation, yet the plea is insufficient for want of an allegation that the seller, at the the time of the sale, knew the cow was diseased. If a defendant claims judgment on the ground that he has proved a plea which is insufficient in law as a defense, he must at least prove so far as he does allege.

Judgment reversed, and new trial granted.