17 Ky. 215 | Ky. Ct. App. | 1824
Opinion oF the Court, by
THE plaintiff in the court below, and now plaintiff in error, declared against the defendant in three for fraud in the sale or exchange of horses.
The first count was for knowing a defect in the ejes of the beast he disposed .off and fraudulently concealing it; the second, for falsely representing bis beast to be sound, knowing the fact to be otherwise; and the third, for inducing the plaintiff to purchase, by fraudulently warranting the beast to be sound. .
On the trial of the issue of not guilty, the plaintiff gave no evidence conducing to prove the two last colints; but proved that the beast was blind, or nearly so, and had been so for some years, and had been previously sold as blind; that nobody could keep the animal long, without discovering its blindness, although it might not be discovered on the first view; that the defendant well knew the fact, but, at the time of the exchange, made no statement about it, and appeared to give up the bea3t to be examined by the plaintiff at pleasure, and said to a witness, who observed that the mare was blind, not in the plaintiff’s presence, while the parties .were on treaty, “ never mind that.’’ The price given for the beast was as great as it would have commanded, if sound, and much beyond its value in its present state.
Th.e court, on this evidence, instructed the jury as in case of a nonsuit, and the plaintiff excepted, and has brought-the case to this court by wyit of error.
That exceptions ought to be taken on the trial, as the decision takes place, we.have no doubt; but that it is necessary-'that it should be written and sealed at that moment, to make it valid, is what we cannot admit, That may be done at any convenient time, fend postponing it for the moment, may be a great convenience,
It is true, that the books of forms do not furnish a precedent expressly in point; but they do exhibit precedents of declarations for deceit in sales, which, in principle, come up to the present case. And it is not necessary that the seller should have been active in producing the concealed defect in the article sold, to make the deceit actionable. If it is placed there by" other caüses, and concealed, the seller is guilty of deceit, and ought to hé responsible.
But if the adjudged oases and books of forms were wholly silent on this subject, elementary writers all acknowledge the impropriety of concealment, and the suppressio veri, makes no inconsiderable figure on their pages. If the chancellor would vacate a contract fot* it, no .good reason can be given, why a court of law should not give an action on ‘account of it, and remunerate the party in damages. Indeed, we would rather suppose that the law first admitted the right, and. was followed by equity; for courts of law are as much
The principles of sound morality and reason concur in tolerating such an action at law. It was the duty of the seller, in this case, to divulge'the defect, which was not apparent. He, on the contrary, held his peace, seeming, at the same time, to surrender the beast for examination. He saw that the purchaser did not discover the defect, and proceeded to pay a fair price for the beast, as if there was no defect, and he took it, sensible that he was obtaining, by his concealment, more than good conscience allowed him to receive. In all such cases, it will better comport with morality and sound policy, to subject the seller to an action at law, and thereby impose upon him the legal, as well as moral duty of telling the whole truth, especially where the defect, as in this case, is a latent one, which might take some time and nicety of observation to discover. We, therefore, conceive that the court below erred in giving the instruction as in case of a nonsuit.
The judgment must, therefore, be reversed with costs, and the verdict set aside, and the cause be remanded, for new proceedings not inconsistent with this opinion.