Lunn v. . Shermer

Ashe, J. (after stating the case as above). That the Judge refused to charge the jury that the plaintiff could not recover in his own name was made a ground of exception, because the purchase of the mule was made with the money of Payne, Luun & Co., and on the firm’s account. In this there was no error. The complaint expressly alleges, and the answer expressly admits, that the mule was sold to plaintiff by defendant. A defect of parties is a good ground of demurrer when the defect appears upon the face of the complaint. The Code, §239, sub-sec. 4. And “when the matter alleged as ground of demurrer does not appear on the face of the complaint, the objection may be taken by answer.” Ibid., §241. But “if no such objection be taken, whether by demurrer or answer, the defendant shall be deemed to have waived the same. Ibid., §242. The alleged defect of parties here did not appear on the face of the complaint. The defendant, therefore, could not demur; nor did 'he raise an objection to the complaint for that defect, in his answer, but in fact admitted it; consequently he is deemed to have waived the Objection, and the plaintiff, for all the purposes of the action, must be considered as the real party in interest. *168 The defendant excepted to the third issue, and offered as a substitute the following, to-wit: “If not sound at the time of the sale, did the defendant know of the unsoundness, and falsely and fraudulently represent him to be sound, with the intent to induce the plaintiff’ to buy?” We think there was no error in declining to submit the issue. The issues submitted to the jury were such as were legitimately raised by the pleadings, and such as entitled the plaintiff upon a finding in the affirmative to recover such damages as he may show he has sustained. Fraud or deceit in the sale of a personal article may be perpetrated either by false representations or by a concealment of unsoundness in the article. When the action is brought for a deceit by false representation, three circumstances must combine: 1st, that the representation was false; 2d, the party making it knew it was false; and 3rd, that it was the false representation which induced the contracting party to purchase. Broome Com., 348. 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 article sold, will depend upon the fact whether the defect is patent or lateut. In Brown v. Gray, 6 Jones, 103, the distinction is thus stated : “When the unsonndness is patent, that is, such as may be discovered by the exercise of ordinary diligence, mere silence on the part of the vendor is not sufficient to establish the deceit, although he knows of the unsoundness, because the thing speaks for itself, and it is the folly of the purchaser not to attend to it.” But “ when the unsoundness is latent, that is, such as cannot be discovered by the exercise of ordinary diligence, mere silence on the part of the vendor is sufficient to establish the deceit,” provided he knows of the unsounduess. In this case it is not stated whether the disease of the horse is latent or patent, but as it is alleged that the horse had “ farcy,” *169 or some other disease, we take it that it was a latent disorder, as there was no proof offered on the part of the defendant that the unsouudDess was a patent defect and no error assigned in that particular. Brown v. Jones, supra. Upon this authority, the finding of the jury on the first and third issues would have been sufficient to show the deceit and entitle the plaintiff to a judgment thereon; for the finding on them established the facts that the mule was unsound at the time of the sale and that the defendant knew it. This was all that the plaintiff was required to establish by his proof. Whether there was a fraudulent intent on the part of the defendant in suppressing the fact found to be within his knowledge was a question for the jury, to be inferred from the facts and circumstances of the transaction. But the jury also found in the second issue, that the defendant represented the mule to be sound as far as he knew. The case of Ferebee v. Gordon, 13 Ired., 350, was a case very similar in its facts, and we think decisive of this case. There was evidence in that case tending to show the unsoundness of the negro, who was the subject of the action, at the time of the sale, and of the defendant’s knowledge of the fact, and it showed also the assertion of defendant that the negro was sound so far as he knew. The Court held that if the statement made by the defendant as to the soundness, was false within his knowledge, he was responsible for it as a false and fraudulent representation. So it is immaterial in our case whether the fraud was practiced by a sup-pressio veri or suggestio falsi, he is equally responsible. The only other exception taken by the défendant was to the refusal of his Honor to instruct the jury that the plaintiff, upon his own evidence, had sustained no loss and was entitled to no damages. The defendant is precluded by his answer from contending that the plaintiff is not the party in interest. Therefore, he is entitled to recover such damages as may be the legal consequence of the fraud practiced upon him, which as his Honor held, was the *170 difference between the value of the mule at the time of the purchase, if sound, and its value, if diseased, at that time, and it can make no difference what disposition the purchaser made of the mule afterwards — whether he practiced a fraud upon some one else and got more than the actual value of the mule, or gave him away. There are some cases where the evidence of the price obtained by the vendor "has been admitted}-not to establish the value of the property, but as a fact proper to be laid before the jury to aid them in assessing the damages. It is a fact the party may prove, but it may or may not assist them in the assessment of the damages. Houston v. Starnes, 12 Ired., 313. There is no error. The judgment of the Superior Court is therefore affirmed. No error. • Affirmed