71 S.E. 313 | N.C. | 1911
This action was brought to recover the amount of certain notes given to the defendant for the price of a horse and other articles of personal property, and secured by a mortgage upon the property sold. The defendant, in his answer, alleged that the plaintiff, at the time he sold the horse to him, had made false, fraudulent and deceitful representations as to his age and qualities, stating that the horse was seven years old, when he was much older, and that he was sound and in good condition, except that he had distemper, but was better, though he still had a little of it. There was evidence for the defendant that the horse had a bad case of glanders, his nose sloughed, lumps appeared on him, and at times the odor emitted from his body and nose was very offensive. He was also lame and was gradually weakened by his disease, so that he became worthless. Without entering more into particulars, we may safely say that there was sufficient evidence to show the falsity of the warranty and the deceit, provided the plaintiff made the alleged representations, and the case turns upon the sufficiency of the evidence to establish this fact. The defendant introduced the written "recommendation" of the horse by the plaintiff, which was given to A. N. Heath, dated 26 May, 1910, at the time of the sale, and which reads as follows:
I have owned the horse six months. He has been at home during that time about four weeks. He has had the distemper during that time, and appears to have it a little yet. As to his eyes, they are good, so far as I know. His working qualities are good, and if wind-broken he has never shown it in the least; and if affected with any internal disease I do not know it. I bought the horse from Hawe Galloway, and he recommended him to be sound, except the distemper.
T. W. WHITMIRE.
Witness: D. L. English.
Defendant then introduced a postal card, mailed to A. N. Heath by the plaintiff, of which the following is a copy:
BREVARD, 25 MAY, 1905. (306)
DEAR SIR: Your card received. Will say in reply that I have a black horse 7 years old, a little thin, but mending fast. I would sell, but you will have to come and look at him before I would make a price.
T. W. WHITMIRE. *250
The court, upon objection by the plaintiff, excluded the card, and defendant excepted. The original defendant, A. N. Heath, having died, the present defendant, J. N. Heath, his father and administrator, was made a defendant. The execution of the notes being admitted, the court held that the defense had not been made out by the evidence, and gave judgment for the plaintiff. Defendant appealed.
The defendant proposed to prove by a witness what A. N. Heath had testified at a former trial of the case, which was excluded by the court, and exception again taken. It did not appear what he expected to prove by this witness was said by A. N. Heath — that is, the nature or substance of the evidence — so that the court could see that it was relevant to the case, and for this reason the ruling was proper. A court can never pass intelligently upon evidence unless it knows what the evidence is, in order that its bearing upon the issue may be determined. The defendant should have stated what he intended to prove was said by A. N. Heath, otherwise the evidence should be excluded, not because it is incompetent, but because it cannot be seen to be competent. The court must judge of its materiality — not the witness. This is the settled rule, and is also the "rule of reason." Overman v. Coble,
But we think the court erred in holding that there was no evidence of the representation. There was also error in excluding the postal, and we must consider the case as if it were a part of the evidence. It is perfectly manifest that what the plaintiff intended, by the written "recommendation" and the postal, the defendant should believe, was that the horse was in good condition, excepting a slight attack (307) of distemper, and in the postal he stated that he was seven years old (which was untrue), and "a little thin, but mending fast," implying that otherwise he was sound. If these statements were knowingly false and misled the defendant, to his prejudice, they were such fraudulent representations as constituted actionable deceit. The three constituent elements of a deceit by false representation are: 1. The representation must be false. 2. The party making it must know that it is false, commonly called the scienter. 3. It must have misled the other party and induced him to contract upon the faith of the representation as true. Lunn v. Shermer,
New trial.
Cited: Robertson v. Halton,