| Mo. | Oct 15, 1886
This is a suit to recover damages, in which the petition, in substance, alleges that plaintiff bought of defendant a quantity of hides, tallow and sheep pelts for the price and sum of thirteen hundred dollars; that defendant falsely, fraudulently and deceitfully represented and guaranteed that the number of hides so sold was not less than three hundred and forty, when in truth and in fact the number was only two hundred and fifty-nine; that plaintiff, relying on the representations and guarantees of defendant, bought the said hides, etc., at the above price and paid for them. The answer denies that any such representations or warranty' were made and avers that plaintiff paid the ■said consideration of thirteen hundred dollars after having received delivery and counted the hides, and with full knowledge of their number. It appears from the evidence that at the time of the purchase plaintiff paid defendant five dollars, and received the property and thereafter sold it to a third party, and in counting the
On the trial plaintiff obtained judgment, from which the defendant has appealed and assigns for error the action of the court in giving and refusing instructions. On the part of plaintiff the court instructed the jury to' the effect that, if they believed that defendant falsely and fraudulently represented the number of the hides to be not less than three hundred and forty, and knew the representation was not true, and that the representation was made to induce plaintiff to buy, and, relying thereon, he did buy, or that, if they believed defendant made such representations as of his own knowledge, not knowing them to be true, and plaintiff made the purchase, relying thereon, that plaintiff was entitled to recover. These instructions are in harmony with the principle announced in the following cases : Dulaney v. Rogers, 64 Mo. 201" court="Mo." date_filed="1876-10-15" href="https://app.midpage.ai/document/dulaney-v-rogers-8005524?utm_source=webapp" opinion_id="8005524">64 Mo. 201; Walsh v. Morse, 80 Mo. 568" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/walsh-v-morse-8007745?utm_source=webapp" opinion_id="8007745">80 Mo. 568; Jones v. Railroad, 79 Mo. 92" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/jones-v-st-louis-kansas-city--northern-railway-co-8007516?utm_source=webapp" opinion_id="8007516">79 Mo. 92. On the other hand the jury were told that if they believed what defendant said as to the number of the hides was only an expression of his opinion, plaintiff could not recover, nor could he recover if he did not rely solely on the false .representation, if any was made, and that the burden of proof was on plaintiff to make out his case by a preponderance of the evidence.
It is insisted that the court erred in refusing to instruct the jury to the effect that if plaintiff counted the hides after he made the purchase, and ascertained the shortage in the number, and, after acquiring this knowledge, paid defendant the price agreed upon, that he thereby waived his right to recover on the warranty, although the jury might believe defendant did warrant ■the number at the time of the sale. This instruction was properly refused, under the ruling of this court in
Perceiving no error in the record, justifying an interference with the judgment, it is hereby affirmed.