24 Mo. 223 | Mo. | 1857
delivered the opinion of the court.
The Circuit Court, considering that the party was not bound to disclose any secret defect in the- filly, directed the jury that he was not responsible, unless he used some, artifice to conceal the fault or throw the plaintiff off his guard, so that he did not examine .her. Chancellor Kent lays down the rule of legal duty in this particular to be, that each party must communicate to the other his knowledge of all material intrinsic defects,
By the civil law, the seller, by the very nature of the contract .of sale, became bound, in an implied warranty, that the thing .sold was exempt from defects, without any reference to his knowledge of them ; but this warranty, though covering all defects, whether known or unknown to the seller, did not extend .to such ■ as were within- the knowledge of the buyer, or
All this, however, is otherwise in a common law sale. Here, there is no implied warranty against defects unless there be fraud by some false representation or undue concealment; and tbe question in tbe present case is, whether there was any undue concealment on tbe part of the defendant ; or, in other words, whether, under the circumstances of the case, it was his duty to disclose the defect of which the plaintiff complains. Although many duties must he left by the law to the honor and conscience of individuals, the public morals require us to lay down and enforce such rules, in relation to the business affairs of men, as will secure fair and honorable dealing, as far as this is practicable consistently with the freedom of individual action and the interests of commerce.- If, in a contract of sale, the vendor knowingly allow the vendee to he deceived as to the thing sold in a material matter, his silence is grossly fraudulent in a moral point of view, and may be safely treated accordingly in the law tribunals of the country. Although he is not required to give the purchaser all the information he possesses himself, he can not be permitted to be silent when his silence operates virtually as a fraud. If he fails to disclose an intrinsic circumstance that is vital to the contract, knowing that the other party is acting upon the presumption that no such fact exists, it would seem to be quite as
Ordinary fair dealing between man and man requires this of him, and the law ought to exact of men at least common honesty in their dealings with each other. If both parties had been ignorant of the defect, the loss would have fallen upon the plaintiff, and so, too, although the plaintiff did not know of the defect % yet if he could have discovered it by the use of ordinary care and attention, such as men engaged in making such purchases usually bestow, the loss would have been attributed to his own folly. The Circuit Court erred therefore in their rulings as to the law applicable to the ease, and the judgment must therefore be reversed, and the cause remanded, to be re-fried in conformity with the principles- here laid down. Judgment accordingly.