Sharon v. Mosher
1854 N.Y. App. Div. LEXIS 9
N.Y. Sup. Ct.
1854
Check Treatment
By the Court, Hubbard, J.

This is an action to recover damages for deceit in thе sale of a horse. The only question to be determined is as to the measure of damages allowable upon the facts presented in the bill of exceptions. The rule adopted on the trial, limited the recovery to the difference in value, between the mare as represented and her aсtual value. This is the well settled rule in case of a breach of contract of warranty, (Cary v. Gruman, 4 Hill, 625 ;) and also in a case of a simple legal wrong, committed without circumstances of fraud or wilfullness. (Walrath v. Redfield, 11 Barb. 368.) But when the wrong complained of is characterized by fraud, malice or gross carelessness, I think the rule of damages should be extended, so as to embrace all damages which naturally flow therefrom.

I think the evidence offered, tо prove the injuries to the person of the plaintiff and to his vehicle, should have been receivеd, and that it should have been left to the jury to say, as a question of fact, whether they resulted from the viciоusness of the mare, and were the probable and natural consequences ‍‌​​‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌​‌​‍of the fraud praсticed upon the plaintiff by the defendant. The accident occurred within a day or two after the trade, the very first time the plaintiff attempted to use the animal. Had the jury found for the plaintiff upon this question, wе could not have disturbed the verdict as against the evidence.

I am aware that there are some authorities which apparently sustain the ruling at the circuit, confounding all distinction, whether fraud does or dоes not enter into the transaction. Such is the case of Stiles v. White, (11 Met. 356.) That was an action to recover damages for deceit in the sale of a horse. It is stated in the head note that “ the measure of damages is the *521same in an action for deceit in a sale, as in an action for breach of warranty on a sale, namely, the difference betwеen the value of the article sold and the value of such an article as it was represented tо be.” The decision in the particular case was doubtless correct, but I think the general rule stated in the note quoted is unsound. The action was tort, and on the trial the court ruled “ that the measure of damagеs would be the difference between the actual value of the horse sold, and 'the value of such а horse as this was represented to be, by the defendant.” To this ruling the plaintiff did not except, ‍‌​​‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌​‌​‍but the defendants did, and it was upon his exception that the cause was argued before the supreme court. Wilde, J., in dеlivering the opinion of the court, speaking of the rule as adopted on the trial, says : “ The defendаnts’ counsel admitted that this was the well established rule in actions on the contract of warranty; and surely the defendants cannot claim a more favorable rule of damages, on the ground of their own fraud. Thе plaintiff was clearly entitled to such a horse, or the value of such a horse, as that sold to him by the defendants was by them represented to be.” The court, it seems, simply decided that the defendants could nоt complain of the rule cf damages adopted on the trial, that it was the lenient rule in actions оn contract. The principle was not decided as stated in the note of the case, to wit, that thе same measure of damages prevails “ in an action for a deceit in a sale, as in an action for breach of a warranty on a sale.” If the plaintiff had on the trial excepted to the ruling, аnd offered to prove special damages as the legitimate result of the deceit, then the sаme question would have arisen, which is presented here.

In the case of Whitney v. Allaire, (1 Com. 312,) Judge Gar-diner, in his opinion, says: “ The measure of dаmages in an action upon a warranty and for fraud in the sale of property is the same. In either сase they are determined by the difference in value between the article ‍‌​​‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌​‌​‍sold and what it should be according to the warranty or representation.” In a large class, and perhaps a majority of cases, this may be the true rule, and certainly was, as applied to the case before the сourt. But the proposition *522should be modified or differently stated, I think, when it assumes the form of a general rule.

[Oswego General Term, April 3, 1854.

Hubbard, Pratt and Bacon, Justices.]

In the famous case of the diseased sheep, (Jeffrey v. Bigelow, (13 Wend. 518,) the- damages were entended beyond the measure allowable for a mere breach of warranty of soundness. The plaintiff was allowed to recover,for the- injury sustained by the communication of the contagion to his other flock. This was doubtless allowed upon the principle that, from the nature of thе disease, the defendant might have anticipated its communication. See also Evans Pothier,part 1, ch. 2, art. 3, pl. 166, referring to a similar ca;>e of a distempered cow. The allowance of this species of special damage, is simply applying ‍‌​​‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌​‌​‍tо a particular case the familiar elementary axiom, which holds a party committing a willful injury responsible for all the natural or probable consеquences of his conduct. The law, for the purpose of remunerative justice, holds that the- wrongdoеr contemplated- all such consequences. (2 W. Black. Rep. 892. Guille v. Swan, 19 John. 381. Vandenburgh v. Truax, 4 Denio, 464.)

In the case of Dewint v. Wiltse, (9 Wend. 325,) the damages were enhanced beyond the terms of the contract,, for the - fraudulent breach of the covenant. (See also Nurse v. Barnes, Ld. Raym. 77; Blanchard v. Ely, 21 Wend. 350.) It may" be questionable how far this is sound law, where there is no fraud in the inceрtion of the contract; and I only cite these authorities to show how little ‍‌​​‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌​‌​‍doubt there can be that, where fraud taints the whole contract, the wrongdoer should be held responsible for all the speciаl damages traceable directly to his wrong.

As before remarked, in this case I think it should have been left to the jury, under the evidence given and offered, to say whether the special damages which were fully averred in the complaint were the natural and probable consequence of the fraud imputed to the defendant.

Anew trial must be granted; costs to-abide the-event.