| Ind. | Jun 19, 1858
This was an action commenced by Gray against Rich before a justice of the peace, to recover damages for an alleged fraud in the sale of personal property. Upon the failure of the defendant to appear, the plaintiff recovered a judgment for 18 dollars. The defendant appealed to the Common Pleas, and, upon his motion, that Court dismissed the case for want of a sufficient cause of action.
The complaint alleges that on the 20th of August, 1853, the defendant sold plaintiff a mare, for which he paid defendant 119 dollars, by giving his note, with security, due the 25th of the next December; that the defendant fraudulently represented the said mare to be only eight years old, knowing the same to be ten or twelve. Then follows
Two objections were taken to the complaint: First, that the action was prematurely brought, even if the plaintiff could at any time maintain such suit. Nothing had been really paid toward the price of the animal; a note had been given which was not due at the time suit was brought.
This objection is not well taken. The plaintiff had his choice of remedies. He might affirm the contract and sue for the damage; or, if the fraud was of the character that would justify it, he might disaffirm the contract and sue for the consideration paid, &c.; or, he might wait until suit was brought for the contract price agreed to be paid, and set up his claim for the damages suffered by the fraud in the way of a defense to the recovery of the whole or a part of the price of the animal, as the proof would warrant.
The next objection to the complaint was, that it did not state that the animal was of less value than the contract price. ’
It is contended that an allegation that the animal, being ten years old, was of much less value than if she had been of the age represented, to-wit, eight years, is not sufficient; that if she was really, even at that more advanced age, of as much value as the contract price, no damage had resulted to the plaintiff.
The amount of damage that the plaintiff suffered was a question for the jury, and we do not think that the complaint was bad for the reason alleged, or that the plaintiff would have been confined to so narrow a scope in making his proof. If the 'defendant agreed to sell the plaintiff a certain article of property to be of a particular description, to-wit, eight years old, for a fixed price, the plaintiff had a right to expect it to be of that age; for it was one of those facts, where reliance must, to some considerable extent, be placed upon the representations of the owner; and if he fraudulently deceived the purchaser, as averred, he must be willing to respond in such damages as resulted. The com
Per Curiam. — The judgment is reversed with costs.