McKinnon v. . McIntosh

Davis, J., (after stating the case). The ruling of his Honor *91 in the Court below was based upon the decision of this Court in the case of Lunn v. Shermer, 93 N. C., 164. If the defendant had amended his answer upon the suggestion and offer of the Court to allow him to do so, it would have removed all doubt and obviated the necessity of this appeal. Under the present liberal statutory provision and practice in regard to amendments, this necessity ought not to have arisen, and it may be a question whether an appeal which could have been so easily obviated should not be dismissed for that cause. “ When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the Court may require the pleading to be made definite and certain by amendment,”' The Code, §261, and his Honor would have been warranted in requiring it in this case, and removing all doubt. Upon a careful examination of the authorities, and a review of the case of Lunn v. Shermer, we think the question presented by this case is unlike, and must be distinguished from that. That was an action for a deceit by false representations, and three things were held to be essential: First, that the representation was false; second, that the party making it knew it was false; and third, that it was the false representations that induced the contracting party to purchase. In the present case, it is alleged in the answer by way of counterclaim in substance, and with sufficient clearness, that the plaintiff made representations in regard to the quality and value of the fertilizer which were not true, and that in consequence, instead of being worth $297.66, it was worth only $150, and he asks that judgment be entered against him for that amount only. This was stated with sufficient definiteness to constitute a defence, and the amount of damage sustained by the defendant because of the difference between the value of the *92 fertilizer as represented, and its real value, though informally .stated, is yet set out with sufficient accuracy to present fairly and unmistakably the defence relied on. Johnson v. Finch, 93 N. C., 205; McElwee v. Blackwell, 94 N. C., 261. The case is more like that of Howie v. Rea, 70 N. C., 559, which was an action to recover the stipulated price of certain castings, in which the defendant was allowed to reduce the stipulated price by showing that the castings received were not such as were contracted for, and the position is clearly sustained by the authorities there cited. In addition to this, the defendant had a right to have the question whether the force and effect of the affirmations of the plaintiff in regard to the quality of the fertilizer, did not constitute a warranty of the quality? If the vendor represents an article as possessing a value which upon proof it does not possess, he is liable as on a warranty express or implied, although he may not have known such an affirmation to be false, if such representation was intended, not as a mere expression of opinion, but the positive assertion of a fact upon which the purchaser .acts; and this is a question for the jury. Thompson v. Tate, 1 Murph., 97; Inge v. Bond, 3 Hawks, 101; Foggert v. Blackmuller, 4 Ired., 230; Bell v. Jeffrey, 13 Ired., 356; Henson v. King, 3 Jones, 419; Lewis v. Rountree, 78 N C., 323; Baum v. Stevens, 2 Ired., 411. We think there was error in not submitting to'the jury the issue raised by the answer, and there must be a new trial. Error. Reversed.