124 N.W. 64 | N.D. | 1909
This is an action for damages for breach of warranty of soundness and for fraudlent representations on the sale of a team of mares by the 'defendants to plaintiff. The complaint charges: That the defendants warranted and represented to the plaintiff that said mares and each of them were in all respects sound and well. That plaintiff relied upon said warranty and representations, and purchased said team of mares from the defendants for the sum of $275. That at the time of said warranty, representations, and sale the said mares were not sound and well, but one of them was suffering from a dangerous and equine disease known as “glanders,” which fact defendants well knew, or had reason to know, at the time they so sold and warranted said mares, and said warranty and representations were false and were made with the intention of deceiving said plaintiff and to induce him to purchase said mares, and he was deceived and defrauded because of the falsity of said warranty and representations. That said mare infected four other of plaintiff’s horses with said disease; said four other horses being of the value of $550. That plaintiff was forced to kill said mare and said four other horses because of said disease. The plaintiff asked judgment for one-half the price paid for said team, $137.50, for $550 the value of the four other horses killed, and for $150 for labor and expense in the care of said horses. The defendants, each by separate answer, denied each and every allegation and each and every portion of said complaint. At the commencement of the trial, defendants objected to the introduction of any evidence for the reason that the complaint did not state facts sufficient to constitute a cause of action, which objection was overruled. Defendants then made a motion that the plaintiff elect which cause of action he would stand on, whether for breach of warranty or false representations; one being ex contractu and the other ex delicto. The motion was denied, and the defendant excepted. On the trial of the case it was shown without evidence to the contrary that respondent purchased the team of mares for $275 on the 1.2th day of January, 1904.
Respondent testified that on the 11th day of January, 1904, he and one Gottlieb Filler, desiring to buy horses and while driving in company with one Peter Schauer, met defendant Philip Keim, who, in answer to a question by Schauer, said he had horses to sell. They then drove to Philip Keim’s place, and reached there about 4 o’clock in the afternoon, and looked at the horses. Respondent found two
Karl Schaefer testified to the same thing.
Andreas Knobloch testified: That he was working for Philip Keim on January 11, 1904, knew the gray and brown mares in question. That Philip Keim sent the witness into the barn to bring out the gray mare at that time. Fie loosened her from the manger. Keim then took her away,- and said she had knots; that he did not have her very long and she was spoiled already. He said if Sockman saw the knots he would not buy her, and that he did not care if Sockman would not buy her. He could leave her.
John W. Robinson, a veterinary surgeon of Coal Harbor, testified that he was called to respondent’s place during the summer of 1905, found glanders there, ordered plaintiff to kill two horses that he found affected with glanders, and afterwards ordered another one-killed. Fie was the district veterinarian for that district.
Jacob Keim testified: That-he owned the gray mare for nine or ten months. That she had neither glanders nor bunches. That he sold her to his brother Philip six days before the deal with plaintiff. That he heard the conversation between plaintiff and Philip on January 12,. 1904. That nothing was said about the appearance of the gray mare, or that she was sick or had lumps on her head. That John and Philip Keim said to plaintiff: “Here are the horses. If they suit you, take them; and, if they don’t suit you, don’t take them, rather leave them here as take them.” Plaintiff said: “The horses suit me, and I will take them.” Philip told
Chas. F. Billows testified that he saw the mare in June, 1904, at Sockman’s; that she appeared to be sick, but that nothing was said about glanders.
At the close of plaintiff’s case, defendants moved the court to direct a verdict in their favor and in favor of each of them, “for the reason that the plaintiff has failed to make out a prima facie case, and plaintiff has failed to prove any warranty as alleged in this action or otherwise; that he has failed to prove that any representations were made by the defendants or any cf them; that hé has failed to show that the defendants or either of them knew the horse was diseased at the time of the alleged sale; that plaintiff has failed to show that at the time of the' purchase he relied on any of the statements made by the defendants or either of them; that he has failed to show that the defendants or either of them made any representations to induce the plaintiff to make the’purchase; that he has failed to show any fraud or deceit; and that it shows from the evidence that the plaintiff himself was negligent, and it shows from the evidence also that the term of caveat emptor applies.” Defendant John Keim also moved the court that the case be dismissed as to him, as there was no evidence in the record to show that John Keim at any time owned the horse.or had anything to do with the sale of her. Both motions were denied and exceptions taken by the defendants. At the close of all the testimony, defendants renewed both motions, which were denied and exceptions taken. Defendants moved the court to direct the jury to bring in a special verdict and submitted 23 questions to the court to be submitted to the jury. Plaintiff objected on the ground that it was too late. The court sustained the objection, and denied the motion of the defendants, to which they excepted. The jury returned a verdict in favor of plaintiff and against both defendants for the sum of $837.50.
Judgment was entered on the verdict. After the entry of judgment, defendants, on a settled statement of the case, made a motion for judgment notwithstanding the verdict, or for a new trial, which motion was denied. Defendants appealed from the judgment, assigning numerous errors. As most of the errors complained of are
Fraud or deceit in the sale of personal property may be perpetrated either by false representations or by a concealment of unsoundness in the article sold. When the action is brought for a deceit by false representations, three circumstances must combine: (1) That the representation was false; (2) the party making it knew it was false;, and (3) that it was the false representation which induced the contracting party to purchase. But, when there are no representations made by the vendor, a deceit may equally be practiced by his silence, but in such cases an important distinction must be observed; for whether a cause of action for deceit will arise from mere silence and a knowledge of the defects in the
There is some evidence in this case to show that the defendants, or at least the defendant Philip Keim, knew that the mare was suffering from some disease; that she was spoiled; that, if plaintiff knew of the disease, he would not buy her. Defendants made no disclosure of the fact that the mare was sick except that she had a cold. There is no claim that the plaintiff knew the mare was diseased. He did know that she had knots on the head and neck, but was informed by the defendants, or one of them, that she was suffering with a cold. Glanders is a disease not easily detected except by those having had experience with it. It may be true, as contended by respondent, that the rule of damages is the same in actions arising upon contract and actions not arising upon contract; still litigants are entitled to have their causes submitted to the jury on the issues made by the pleadings and on the evidence introduced. If the evidence in the case at bar shows
For the reason stated, the judgment is reversed and a new trial • ordered.