46 Mo. 384 | Mo. | 1870
delivered the opinion of the court.
This suit was instituted by the plaintiffs to recover damages from defendant for a breach of warranty, and for fraud practiced upon them in the sale of two horses. The petition alleged that the defendant represented the horses to be sound and free from disease, and that upon that representation they relied, and by reason thereof they were induced to purchase. The answer was a denial; judgment for plaintiff. The only ground insisted on for a reversal is that the court below treated the action as arising on a warranty, when the petition shows that it was a case of deceit.
Prof. Parsons, in treating on the subject of warranty, says that any distinct assertion or affirmation of quality made by the owner during a negotiation for the sale of a chattel, which it may be supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or as constituting a warranty. If such affirmation were made in good faith, it is still a warranty; and if made with a knowledge of its falsity, it is a warranty, and it is also a fraud.
The petition substantially set out a cause of action as for a warranty, according to the above and foregoing principles. It shows an affirmation or representation upon the faith of which the horses were purchased and the consideration paid. And it negatives entirely the idea that these affirmations or representations were intended as mere recommendations or expressions of opinion, leaving the buyers to understand that they must examine and judge for themselves. But upon this point the case was fairly submitted to the jury under instructions from the court. The only error that we have discovered in the record is in giving instructions entirely too favorable for the defendant.
The judgment is clearly for the right party, and must be affirmed.