Plaintiff claims that he purchased the animal of defendant at a public sale; that defendant represented her to be an imported Perdieron, suitable for breeding purposes; that he (plaintiff) was desirous of purchasing such an animal, and attended the sale, and purchased her for that purpose; that in truth the mare
Defendant advertised a sale of “four head of thoroughbred Perdieron mares, one twelve years old, and three coming four years old.” The animal in question bore the name of “Amy,” and at the time of the sale defendant caused the auctioneer conducting that sale to announce that “the future usefulness of the mares was not warranted.” When the mare “Amy” was put up, the auctioneer made the following additional announcement: “She has raised seven colts in eight years. Last year she failed to get in foal, and this year she was not bred.” She was led around to display her action, and the auctioneer said, while the bidding was in progress that “a man buying her at that price [$60 or $65] would be making money or profit if he got one colt from her.” Plaintiff bought her without asking any questions. After plaintiff had taken her to his home, and withm a few days thereafter, he discovered that her genital organs were diseased, and that corruption was passing from them. He testified that he purchased her for a brood mare, and that in the •condition she was in “she was not worth a dollar.” There is evidence that defendant knew at thé time of the sale
In this case there is no evidence that defendant knew of the purpose for which plaintiff was buying the animal, and it clearly appears that plaintiff had opportunity for inspection, and, so far as shown, relied on his own judg. ment, except as we shall hereafter note. No warranty will be implied from the statement that the animals were “thoroughbred.” This was simply a descriptive term. Shambaugh v. Current, 111 Iowa, 121. Moreover, the defendant expressly stated at the time the sale was opened that the future usefulness of the mares was not warranted. This clearly negatives the thought of an implied warranty.
Even in such cases, in an action at law for damages, it must be shown that defendant knew of the defect, and that he made the statements or concealed the defects with intent to defraud the purchaser. The exact complaint made in the petition is that defendant knew of the defects in the animal, and that he fraudulently concealed the evidence thereof, and removed all outward signs, so that her condition was not apparent to the observer. It is also charged that plaintiff bought the animal for breeding purposes to defendant’s knowledge; that defendant knew she was worthless for that purpose, or for any other, and concealed the facts from plaintiff for the purpose of cheating and defrauding him. There is no evidence, as we have seen, that defendant knew of the purpose for which plaintiff wished to buy the mare, and, in view of the statement that defendant would not warrant, we are left simply to inquire whether defendant did or said anyhing which would in law be considered a fraud. There is no evidence to support this contention. At most it is a bare surmise, and, in view of the fact that defendant had but recently received her back from a veterinary surgeon, who stated that he believed she was cured, we are not disposed to even suspicion that defendant removed evidences of disease with intent to defraud and deceive. Had he done so,
The trial court was right in directing a verdict, and its judgment is aeeirmed.