23 Barb. 521 | N.Y. Sup. Ct. | 1857
There are two counts in the complaint: one alleged that the defendant sold to the plaintiff a 2 years old bull for $10, and falsely and fraudulently represented to the plaintiff that the animal was a good smart bull, wrhen in fact he was useless as a bull and unable to get cows with calf, to the knowledge of the defendant, whereby the plaintiff sustained damages by putting his cows to said bull, and having to put them to another bull, causing them to come in late, and trouble and. expense in driving them to another bull. The other count alleged that the bull was impotent and worthless as a bull and the defendant knew it, and falsely and fraudulently concealed this fact from the plaintiff, whereby the plaintiff sustained the damages set out in the first count of the complaint. No evidence was given to sustain the first count, and the evidence was wholly insufficient to sustain the second. If the animal was impotent when a yearling, it did not follow that he would remain so when he became two years old, and there was no evidence that the defendant had any knowledge of his impotency at the time of the sale. He was sold in the spring of his second year, before his powers were called into
Chancellor Kent lays down the rule somewhat differently. (2 Kents Com. 484.) He says, “ the writers of the moral law hold it to be the duty of the seller to disclose the defects which are within his knowledge, but the common law is not quite so strict. If the defects in the article sold be open equally to the observation of both parties, the law does not require the vendor to aid and assist the observation of the vendee.” “ Where the means of information relative to facts and circumstances affecting the value of the article sold are equally accessible to both parties, and neither of them does or says any thing tending to impose upon the other, the disclosure of any superior knowledge which one party may have over the other, as to those facts and
Judgment of the county court and of the justice reversed, with costs.
C. L. Allen, James, Rosekrans and Paige, Justices.]