60 Ind. App. 131 | Ind. Ct. App. | 1915
Appellee brought this suit against ap- ■ pellant in the Marion Circuit Court to recover damages for fraud in the sale of a stallion. After the issues were formed, on motion of appellee, the cause was venued to the Hamilton Circuit Court where a trial by jury resulted in a verdict for appellee for $1,900. From a judgment rendered thereon appellant appealed to this court and has assigned as error the overruling of its motion for a new trial.
The complaint alleges in substance that appellant is a corporation organized under the laws of this State and is engaged in the business of importing and selling draft stallions to be used for breeding purposes; that in February, 1911, appellee visited appellant’s stock farm and stated to it that he was desirous of purchasing a good draft stallion for breeding purposes; that appellant exhibited to him a large black stallion, named “Hector,” and for the purpose of cheating and defrauding appellee and inducing him to purchase the stallion falsely and fraudulently represented to appellee that the horse was an excellent stallion for breeding purposes, and was sound in every way and was worth the sum of $3,000 for breeding purposes and then and there offered to sell him to appellee for that sum; that at the time the horse was afflicted with a disease commonly called “summer sores,” .which disease was indicated by a chafed, inflamed and scarred appearance about the hocks of the stallion; that appellee was at the time wholly ignorant of the nature, character, appearance, symptoms and existence of such disease in horses, whieh fact appellant well knew at
In its motion for a new trial appellant sets out fifty-nine specifications but we consider only those presented by the briefs.
states the law correctly but the court did not err in refusing to give it for the reason that by instruction No. 16'given at the request of appellant, the jury was told, among other things, that a statement or representation to be fraudulent must not be a mere expression of opinion or relate to facts “open to the plaintiff as well as to the defendant.”
Appellant’s contentions are mainly based on views of the law, which if ever -applicable to such a case as is disclosed by the record, are not now sustained by the decisions of this court and our Supreme Court.
The case seems to have been fairly and impartially tried on the merits and substantial justice seems to have been done between the parties. The record discloses no intervening error prejudicial to appellant which would warrant a reversal. Driscoll v. Penrod (1911), 176 Ind. 19, 25, 95 N. E. 313. Judgment affirmed.
Note. — Reported in 110 N. E. 243. Effect of fraudulent concealment by vendor, see 15 Am. Dec. 106. On statements made without knowledge of falsity as ground for action for fraud, see 18 L. R. A. (N. S.) 379. See, also, under (1) 17 Cyc 60, 66; (2) 3 Cyc 300; (3) 3 C. J. 988; 29 Cyc 750; (4) 20 Cyc 127, 128; (5) 31 Cyc 701; (6) 38 Cyc 1598, 1599, 1778; (7) 20 Cyc 27; (8) 38 Cyc 1567; (9, 11) 38 Cyc 1711; (10) 38 Cyc 1617.