113 N.W. 103 | N.D. | 1907
This is an action for damages for breach of warranty of soundness on the sale of two horses by the defendant to the plaintiff. The complaint charges that the defendant agreed and warranted to the plaintiff that the horses were in every way sound and in good health, and thereby induced the plaintiff to purchase the same and to pay the price of $240 therefor; whereas at the time of the sale and warranty such horses were not sound, and not in good health, but were suffering from glanders, and as a result were shot Jiy the state veterinarian. The plaintiff asked judgment for the price paid for the horses and
The appellant’s first contention is that his motion for a directed verdict should have been granted because plaintiff’s right to recover was based on a criminal statute, and he could not recover without showing that the defendant had been convicted of the criminal offense of selling animals affected with a contagious or infectious disease. He cites Newell v. Clapp, 97 Wis. 104, 72 N. W. 366, as authority. The statute of Wisconsin on which the decision in that case was predicated differs materially from ours. The Wisconsin law provides that any person convicted of any of the above acts or omissions shall be fined, and be liable to all persons injured, for damages by them sustained. Section 9077, Rev. Codes N. D. 1905, provides that every person violating any of the provisions of this chapter (making it a misdemeanor to sell, etc., any horse, mule or ass, knowing, or having reason to believe, it to be infected with glanders) shall be liable to any one in a civil action injured by such violation for all damages directly or indirectly occasioned thereby. It will be seen that the fact of
The questions presented are: (1) Was the statement that the horses were only suffering from a cold caught in swimming the Missouri, and that they were sound, and would be all right in a day or two, a warranty? (2) If a warranty is involved, should the question as to the statement amounting to a warranty have been submitted to the jury, notwithstanding both parties had asked for a directed verdict? (3) If the statement was a warranty, was it necessary to allege in the complaint that defendant knew the animals had the glanders? (4) If the horses were warranted against glanders, and were infected with the disease at the time of the sale, is plaintiff entitled to recover for their feed, medicine, and care between that date and the day when they were killed by the state veterinarian?
A number of cases are found holding that statements similar to the one made by appellant to respondent when these horses were sold are warranties as a matter of law. The distinction drawn between those which are and those which are not warranties depends upon whether the representation was affirmed as a fact as to material qualities, and was acted upon by the purchaser, or whether it was a mere expression of opinion. In the former case it is held to be a warranty, while in the latter the contrary is usually held. Henshaw v. Robins, 50 Mass. 83, 43 Am. Dec. 367; Bank of Spearfish v. Graham, 16 S. D. 49, 91 N. W. 340. Where, however, there is a doubt whether the language used was intended as a warranty or received by the purchaser as such, the question of warranty must be submitted to the jury. A use of the word “warrant” is not necessary, but any language constituting a representation equivalent to a warranty answers the same purpose, and has the same legal effect, although in some cases it may be in the form of an opinion. The interpretation of the language used, the intention of
The next question is whether the court erred in directing a verdict after both parties had rested, and both appellant and respondent had made motions for a directed verdict. It is well established that in such cases both parties waive any right to a submission of the case to the jury, and that the findings of the court are thereby substituted for the verdict of the jury, that all questions which could properly have been submitted to the jury are thereby submitted to the court for its decision. Therefore it will be seen that appellant has no ground for complaint, because the question as to the statement on the sale being a warranty was not submitted to the jury. The court took the place of the jury, and was entitled to take into consideration all the facts and circumstances surrounding the sale precisely the same as it would have been the duty of the jury to do, and there is no evidence that the court did not do so. The court having acted upon the motions of both parties, and having directed a verdict for the respondent, appellant cannot now say that the court erred in its decision, unless there was an absence of any facts on which to base it. There is ample authority for its finding that the statement made was a warranty. Stanford v. McGill, 6 N. D. 536, 72 N. W. 938, 38 L. R. A. 760, and cases cited; 6 Enc. Pl. & Pr. 703.
The plaintiff set out in his complaint items of expenditure for medicine, care and feed for the horses between the time he purchased them and the day of their being killed by the veterinarian as special damages amounting, to $86. It is urged that no allowance should be made for these expenditures as special damages.
The only remaining question relates to the failure-of the plaintiff to allege in his complaint or to prove that defendant kne\y the animals were infected with glanders. That such knowledge is not necessary to support an action for breach of warranty is elementary, and the cases are uniform in so holding. A gradual change
The judgment of the trial court is affirmed, with costs to respondent.