Lindsay v. Davis

| Mo. | Jul 15, 1860

Napton, Judge,

delivered the opinion of the court.

There were two questions involved in the trial of this cause; and the leading principle pervading the instructions, which the court gave to the jury, was undoubtedly correct. One question was, whether there was a warranty; the other was, whether there was any fraud. There must be a warranty or fraud to hold the vendor of a horse with a secret malady responsible to the purchaser. The maxim that a sound price implies a sound commodity, although a favorite one in the civil law, and occasionally borrowed to settle questions under our system, has never met with general favor, or taken root as a permanent part of the common law. Our law is, that the buyer takes the risk of quality and condition, unless he protects himself by a warranty, or there has been a false representation fraudulently made by the vendor.

This principle was the one upon which the court proceeded in trying this case, and, so far, the action of the court was unexceptionable. In carrying out the principle, however, there were instructions given to which exceptions were taken, and the propriety of these instructions presents the only point for our consideration.

In relation to the alleged warranty, the court disposed of the subject by instructing the jury that there was no evidence to support the allegation. A warranty may be verbal or written; when it is reduced to writing, it is the province of the court to expound it; but when it is merely verbal, it is for the jury to interpret the words of the witness who testifies concerning it. The court may explain to the jury what constitutes a warranty, when it rests altogether on oral proof; but as” no particular form of words is essential, and it is mostly a question of intention on the part of both the vender and vendee, that question, like any other question of fact, must be left to the jury.

Of course, when there is no evidence of any such warranty, there can be no necessity for any instructions on the subject, and such was the opinion of the circuit court in this case. The only evidence on this point was that of a single witness — the only one present at the trade between plaintiff and defendant — who testified that, in answer to a question, put by the plaintiff to the defendant, as to whether “ the stock was sound, ” the defendant replied that “ he thought it was.”

It appears to be the prevailing opinion, both in this country and in England, that a simple affirmation of soundness does not constitute a warranty, unless it is so intended and understood at the time. In McFarland v. Newman, 9 Watts, 55, Judge Gibson said that sucli a naked averment was “ neither a warranty nor evidence of a warranty.” In connection with other circumstances, the learned judge admitted that “ it certainly may be taken into consideration; but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation, Should he have used expressions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis ; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it; but not to have exacted a direct engagement, had he designed to buy on the vendor’s judgment, must be accounted an instance of folly.”

It is true that at a trial at nisi prius in England, Lord Ellenborough seemingly advanced a very different doctrine, (4 C. & P. 45,) where the expression of a horse-trader in selling his horse was, “ I never warrant; but he is sound as far as I know;” and this was held by the learned judge a warranty.” But this expression of the vendor was in answer to a direct question put to him by the vendee, “ Will you warrant him ?” and Lord Ellenborough may have felt himself at liberty to treat the reply as evasive and intended to produce the impression of an affirmative answer. However this may be, it is believed the decision has not been followed in England, and it has been criticised with much severity by Chief Justice Gibson, and treated as a complete perversion of the man’s language, and entirely unjustifiable.

The answer of the defendant, Davis, in this case, as testified to by the witness, was not even an affirmation of soundness, but a mere expression of opinion. Whether the cir-cumstances under which it was made, together with the prior and subsequent conversation, would have any tendency to control the natural and obvious meaning of the language used, would be a matter of inquiry for the jury, if there was any evidence whatever tending to throw any doubt upon the agreement and understanding of the parties. We pass by this branch of the subject, however, for the reason that our examination of the evidence has not satisfied us that the question of warranty could have had much influence in the determination of the case, and that whether tried by a court or a jury, the result would probably be the same. We have referred to it principally to state, that where a warranty is insisted on, depending altogether or in part on oral proof, the question properly belongs to the jury, and if there is any evidence tending to establish the allegation, the court should submit the matter to the jury, with such explanations as the facts in evidence might justify.

The second and main ground of objection to the instructions of the court is based upon the construction which the court seems to have given to the allegations of the petition concerning fraudulent misrepresentations. The second count of the declaration avers that the animals purchased by plaintiff were unsound, and that defendant knew it. There is, then, a further averment that the disease constituting the unsoundness was glanders. This last averment was unnecessary ; whether the disease was glanders or distemper, or any other infirmity not obvious upon inspection, which impaired the value of the mares for the purposes contemplated by the parties to the trade, the responsibility of the vendor for a false and fraudulent misrepresentation of their condition was alike in either contingency. But as the pleader thought proper to aver the character and name of the disease, he was bound to prove it. An averment may be unnecessary and yet not immaterial or impertinent, when made; and unnecessary averments, if they are not also immaterial, must be proved.

What constitutes an unsoundness is a matter for the jury. It is not the province of the judge to determine the character of diseases. When we say, therefore, that distemper would have been an unsoundness as well as glanders, we mean, of course, if the jury should so consider it from the evidence submitted to them. Whether glanders is an aggravated form of distemper or a distinct disease, or whether either of the diseases would constitute an unsoundness, are questions of fact with which the court has nothing to do.

The objection to the instructions is, that they required the plaintiff to prove, not only that the alleged disease was glanders, but that the defendant knew that the animals had that specific disease. There is ■ no averment in the petition to this effect. It is alleged- that the mares and jack were unsound, and that the defendant knew they were unsound; but it is not said that he was acquainted with the specific disease of which, it is said, a portion of the animals died, and with which, it is averred, they were all affected at the time of the sale. It was not material that the defendant should have been acquainted with the nature or name of the disease, if disease there was ; it was enough that he knew the animals were unsound, if, indeed, the fact was so. The fraud was the same, if the defendant stated the animals to be sound when he knew them to be- unsound, whether the unsoundness turned out to be distemper or glanders, or any other form of disease. The plaintiff avers in this case that the disease was glanders, but he does not aver that the defendant knew that fact; but merely that the defendant knew them to be unsound. We can very well imagine that the animals may have had the glanders, and that the defendant was well apprised of their unsound condition, but may have been totally ignorant of that specific disease and all its characteristics. In that event, he would be justly held responsible for a false representation, although under the instructions given by the court upon the trial, it is obvious that, upon the hypothesis named, the jury were bound to find for the defendant.

The third instruction asked by the plaintiff should have been given, and the second, third and fourth given for the defendant ought to have been refused. We shall therefore remand the case for a new trial.

Judgment reversed and case remanded.

The other judges concur.