56 Ala. 202 | Ala. | 1876
The law, as settled in this State, is, that a misrepresentation by a vendor of chattels, of a material fact, made at the time of, or pending the negotiation for the sale, on which the purchaser has the right to rely, and in fact relies, is a fraud, furnishing a cause of action to the purchaser, or a ground of defense to an action for the purchase-money. If the representation is not a mere expression
The misrepresentation must be of a material fact, on which the purchaser has a right to rely. It must not be in respect to a mere matter of opinion, or belief, or a matter apparent to the observation of the purchaser, if he exercised ordinary prudence. — Story on Sales, § 169. It must have exercised an influence on the decision to purchase. If the purchaser decides on his own judgment of the quality of the chattel, after an examination of it, or on the judgment of others who may have examined it for him, he is not deceived by the representation, and has no legal cause to complain of it. Fraud and damage must concur: fraud without damage, or damage without fraud, is not a cause of action, or a ground of defense. The deceit practiced on him, inducing a purchase he would not have made, is the true legal ground of complaint. We do not understand that the purchaser must have trusted wholly to the representation — that it must have been the exclusive inducement or consideration of the purchase. It is enough that it was a material inducement, without which he would not have entered into the contract. After an examination of the chattel, after consultation with others examining or acquainted with it, the representation, conforming' to the opinion he may have formed, may exercise a controlling influence with him in making the purchase. If it does, he is deceived, and the vendor must answer for the injury produced. That such examination is made, does not absolve the vendor from speaking only the truth, or lessen the right of the purchaser to rely on his affirmations. The charge given by the court below was erroneous.
2. Whether the representation was made; whether it was intended by the vendor as the affirmation of a fact, or the expression only of his opinion or belief; whether it was relied on by, and influenced the purchaser, are questions for the jury. A witness, whether the purchaser or another, should not be permitted to testify that the representation was relied on, and induced the purchase. This is not strictly a fact, but an inference or conclusion of fact, to be drawn by the jury, from the character of the representation, the conduct of the parties at the time it was made, and all the cir
3. The representation of soundness of the horse, if made by the vendor, referred to his condition at the time of the sale; and on the purchaser rested the onus of proving satisfactorily the existence of unsoundness at that time. Mere suspicion that it then existed is not sufficient. — Eaves v. Dixon, 2 Taunt. 343. Unsoundness of the horse three weeks after the sale, the character of which was shown, and the causes to which it may be attributable — causes which may have been in operation at the time of the sale, and not then have produced any visible effect — would be proper evidence to be submitted to the jury, to enable them to determine whether it existed at the time of the sale and representation. But the mere fact that the horse was lame three weeks after the sale, and, in the opinion of the witness, then unsound, was not proper and legitimate evidence. The lameness may have been merely temporary, produced by some causes to which the purchaser subjected him after the sale. Nor, without evidence of the character of the lameness, was it permissible for the witness, if he was an expert, as to which we express no opinion, to state his opinion as to the length of time it had existed. No defect or disease was attributed to the horse, other than the lameness; and its character, or cause, was not shown. It may have existed at the time of the representation, and been apparent to the purchaser, or it may have been produced by subsequent causes, if the character and cause of the lameness had been shown, and evidence given that it was possible for it to have existed at the time of the representation, the question would be presented in a different aspect. As now presented, the court properly excluded the evidence. Its admission would have been an invitation to the jury to draw from it inferences or presumptions it is not capable of supporting.
The judgment must be reversed, and the cause remanded.
