62 Ind. App. 586 | Ind. Ct. App. | 1916
This was an action for damages sustained by reason of fraudulent representations of appellant which induced appellee to purchase a stallion from him. A verdict in favor of appellee for $900 was returned. The errors assigned mostly turn upon the one question whether there was sufficient evidence upon which to predicate a verdict of fraud. This question is presented in various ways, under assignment of error in overruling appellant’s motion for new trial, among the grounds of which were the overruling of a motion to direct a verdict for defendant, the giving of certain instructions based on the theory that there was evidence to show fraud, the refusal to give other instructions on the theory that the evidence was insufficient for that purpose, and the insufficiency of the evidence to support the verdict. Error is also assigned in the court’s overruling appellant’s motion for judgment on the answers to interrogatories returned by the jury.
It appears from the evidence that appellant came to appellee and proposed to sell to him the stallion in question; that appellee was at first not disposed to buy the horse, but later agreed to trade some machinery for him. The parties had two conversations prior to the consummation of the sale. Appellant said that the horse was sound and all right; that he had to be so; that appellant could not sell high priced horses unless they were all right; that he had to be honest to sell them; that he warranted the horse to be sound and all right; that if he sold the horse to appellee, he would have to be honest
“This article witnesseth that, whereas, I, Mr. W. R. Martin, have this day sold to one Mr. Peter Schoub, one certain stallion known as Brisko, Percheron, No. 40201, and said horse is to be transferred to Mr. Schoub with a good title, free.and clear from all incumbrances, and I have taken in exchange for the. same one certain Avery separator, and one Birdsell No. 6 clover huller, and one Rumely Traction engine, belts and all other attachments complete, ready for thresher, also one twelve horse power gasoline mule engine, nearly new, purchased one year ago, and buzz saw and all attachments complete: Mr. Schoub agrees to deliver the buzz saw, etc. * * *
“This is the only contract made by us and is not to be changed or varied by any promises or representations by ourselves or other people.”
After the sale, it was found that the stallion had bone spavin, and was on that account worthless for breeding purposes. There was evidence to show that he was spavined at the time of the sale. The evidence was also such that the jury might infer either that appellant knew of the spavin at the time of the sale, or was chargeable with knowledge in the exercise of reasonable care. Wheatcraft v. Myers (1914), 57 Ind. App. 371, 377, 107 N. E. 81. Appellee at the time he saw the horse before the sale noticed that he was lame, but he also noticed a slight sore on his foot, and appellant told him that the horse hurt his foot in the car, and this occasioned the lameness. There is testimony that the men holding the horse kept moving him about
Judgment affirmed.
Note. — Reported in 113 N. E. 384. What amounts to a breach of warranty as to soundness of horse, 32 L. R. A. (N. S.) 182; 102 Am. St. 622. See under (5) 20 Cye 87, 89.