67 Fla. 72 | Fla. | 1914
J. H. Long, the defendant in error, brought an action of replevin against A. P. Kitchen, the plaintiff in error, in the Circuit Court of Jackson County to recover possession of one black horse mule about 14 years old, named “Dock,” and one blue mare mule, about fourteen years old, named “Della,” alleged to be unlawfully detained by the defendant, and in the possession of defendant, of the value of $200.00.
The affidavit and other proceedings are the usual ones in such a case. The defendant Kitchen pleaded not guilty; on the trial the jury found a verdict for the plaintiff, and the statutory judgment entered for the plaintiff for the mules for $200.00, the value of the mules and costs. This judgment is here for review on writ of error.
Mr. Long testified that Mr. Kitchen came to him at the oyster cart in front of the City Drug Store in Marianna and told him that he, Kitchen, had two mules he wanted to trade with him (Long). Long had a pair of mules. He, Long, went with Kitchen to Mr. Dillon’s barn, and Kitchen showed him the two mules. Long noticed a big mare mule, and Kitchen said it was his mule. Long looked at the big bay mare mule, and Kitchen told Long he did not know anything about her, he had just traded for her with a man from Calhoun County. Long told Kitchen if he would guarantee this mule, he, Long, would swap him his two mules and give him $50.00 to boot. Kitchen refused to guarantee the mule, and said he did not know anything about her. They finally traded, Long giving his two mules and $25.00 to boot for Kitchen’s mule. Long testified his mules were worth $100.00 each.
The assignments of error raise the material question whether Mr. Kitchen should halve informed Mr. Long of the latent defect of the mule, when they were trading, in spite of the fact that he refused to guarantee the animal generally. Upon this question the courts are divided. See 35 Cyc. 69, notes 40 and 41. It is there said: “Some cases carry the doctrine of caveat emptor so far as to hold that the seller is under no obligation to communicate the existence of defects in the thing sold not discoverable by examination, such as a hidden disease in an animal (citing an Illinois, a New York and a New Jersey case, and some English cases). But it is generally held in this country that the intentional non-disclosure of a latent defect by the seller when he knows that it is unknown to the buyer, is fraudulent (citing cases'from more than fifteen States) among others Dowling v. Lawrence, 58 Wis.
The judgment of the Circuit Court is affirmed.