151 P. 735 | Or. | 1915
delivered the opinion of the court.
“All affidavits of said persons shall be taken by the clerk of the court, who must certify thereon, if he is satisfied of the fact that the person is respectable and disinterested. ’ ’
The brother of the affiant was not a disinterested person, within the meaning and intent of this section: Lovering v. Lamson, 50 Me. 334; Lyon v. Hamor, 73
“If you find that the plaintiff is entitled to a verdict against the defendant, then the next question you will have to decide will be: How much is the plaintiff entitled to? There has been some evidence offered in the trial of the case which the plaintiff claims tends to show that some of the cattle which he procured from the defendant died after the transfer. The plaintiff would be entitled to recover from the defendant the reasonable value of the cattle that died, estimating the reasonable value of those cattle at what they would have been worth had they not been infected by the infectious disease, as claimed by the plaintiff. In other words, you would be required to estimate the value of the cattle that died, assuming that they did not have any infectious disease, and whatever was the reasonable market value of those cattle, assuming that they were not affected with an infectious disease, would be the amount that the plaintiff would be entitled to recover from the defendant. I am referring now to the cattle that died. There is no evidence in this case at all that would warrant you in assessing any damages against the defendant on account of any cattle that are still alive. The only evidence that has been offered on the trial of the case with reference to the question of damages is merely with reference to the cattle that have died since the transfer of the cattle from the defendant to the plaintiff.”
“If plaintiff avers negligence in general terms, without specifying wherein it consists,-his declaration, petition or complaint will be good on general demurrer, though under some systems it will be subject to a motion to make it more definite, and certain. But where he avers that the negligence of defendant consisted in one thing, and then proves negligence consisting in something else, he ought not be allowed to recover. ‘It would be folly to require the plaintiff to state his cause of action and the defendant disclose his grounds of defense, if in the trial either or both might abandon such grounds and recover upon others which are substantially different from those alleged’ 6 Thompson, Neg., § 7471.
“If an allegation be made in a pleading which embodies matter of essential description of that which is material to the cause of action or ground of defense, or operates as a limitation, of that which is material, the evidence must correspond to such allegations; else a variance will be created, and the action cannot be maintained without an amendment of the pleadings”: 13 Ency. of Ev. 633.
Here, to say the least, the specific description constitutes a limitation on that which is material. Counsel for plaintiff cite the case of Grigsby v. Stapleton, 94 Mo. 423 (7 S. W. 421), which was an action to recover the price of certain cattle, in which the defendant, among other defenses, pleaded: (1) A fraudulent representation as to the health and condition of the cattle; and (2) fraudulent concealment of the fact that
“If, therefore, plaintiff knew they [cattle] had the Texas fever, or any other disease materially affecting their value upon the market, and did not disclose the same to the defendant, he was guilty of a fraudulent concealment of a latent defect. It is not necessary to this defense that there should be any warranty or representations as to health or condition of the cattle. Indeed, so far as this case is concerned, if the cattle had been pronounced by some of the cattlemen to have the Texas fever, and, after knowledge of that report came to plaintiff, some of them to his knowledge died from sickness, then he should have disclosed these facts to the defendant. They were circumstances materially affecting the value of the cattle for the purposes for which they were bought, or for any other purpose. * * To withhold these circumstances was a deceit, in the absence of proof that defendant possessed such information.”
The pleadings are not given, beyond what we have heretofore stated, and the language used must be considered with reference to the case then before the court. The opinion states that it was shown beyond any question that the cattle had the Texas fever. Therefore, so far as appears, there was nothing in the case suggesting the question raised in the case at bar. The court was considering a case where the disease alleged had been absolutely proved; there being no question as to the relevancy of testimony to the allegations of the complaint. The court properly laid down a general rule which is correct, namely, that if animals have any latent disease which affects their value, and the seller knows this fact and fails to disclose it to a buyer, who does not know of its existence, the seller is guilty of a fraudulent concealment and
We find no error in the record, and the judgment is affirmed. Affirmed.