Osborne v. . McCoy

12 S.E. 383 | N.C. | 1890

This is not an action for deceit in falsely representing the mare as sound, when the defendant knew to the contrary, but an action commenced before a justice of the peace to recover money alleged to have been paid by the plaintiff as damages, "to a man in South Carolina," on account of a breach of warranty in the sale of an unsound horse, which he had sold, as agent for the defendant and Jonathan Osborne, with warranty.

We need not consider the question of power of authority of the plaintiff, as agent, to warrant the mare sold by him for the defendant. His own testimony, though not very clear, for it seems there were two trades, fails to show any warranty. He says that he told the "man" with whom he traded that the mare belonged to McCoy, and "was sound so far as (he) I knew." This was not even an affirmation of soundness, as was the case in Horton v. Green, 66 N.C. 596, in which it is said, citing Baum v. Stevens, 24 N.C. 411, and Erwin v. Maxwell, 7 N.C. 241, that such an affirmation of soundness does not, per se, amount to a warranty, but may be submitted to the jury, with attendant circumstances, to say whether the affirmation was intended as a warranty. The plaintiff sold the mare, not affirming her soundness, but only saying that she was sound so far as he knew. If knowingly false, it might have been cause for an action of deceit, but it was no warranty. The plaintiff, in 1889, near four years after the sale of 1885, though advised by (731) a lawyer, to whom he paid a fee of $2.50, to compromise, had no authority from the defendant to pay the money sought to be recovered, for him, and he (the defendant) is under no legal obligation to reimburse the plaintiff for money so paid, not at his request or instance, but without authority from him, express or implied. Meadowsv. Smith, 34 N.C. 18.

The plaintiff could not recover upon the evidence adduced by him, and there is

No error.