Routh v. Caron

Stayton, Associate Justice. From the manner in which this case was presented by demurrers in the court below, and from the brief of counsel tiled in this appeal by counsel for appellee, it is probably true that the question considered in the district court was whether by parol evidence the warranty contained in the deed made by appellee to the appellants could be enlarged and made to extend to a warranty of the soundness of the sheep sold. That was not the question in the case. The question was whether or not the representations alleged to have been made by the appellee to the appellants, in reference to the condition of the sheep, were such, and made under such circumstances, as to amount to fraudulent misrepresentations, such as would entitle the appellants to rescind the sale, or to maintain an action, in the nature of an action for deceit, for damages. The petition alleges that the sheep were diseased, and that this fact was known to the appellee, who was an experienced flock-master, and that it was unknown to the appellants, who are alleged to have had no fair opportunity to inspect them, or experience from which they could have detected the disease. It alleges that the appellee represented that the sheep were sound, [292] free from scab, itch or other contagious or infectious disease to which sheep of the country xvere subject; that this was false, and known to be so by the appellee; that the representations were made with the fraudulent intent to induce the appellants to purchase the sheep after he knexv that they xvould not purchase if they knew that the sheep were, as alleged, diseased. It is further alleged that the representations made in reference to the condition of the sheep were material, and that by them the appellants ivere influenced to make the purchase, which they would not otherwise have made, and the loss claimed to have resulted from the diseased condition of the sheep is clearly stated. There can be no doubt that .the averments of the petition show a good cause of action, and that to prove them by parol evidence will not infract the rule which denies the right to contradict or vary a xvritten contract by parol evidence. 1 Greenleaf, 284; Wharton on Evidence, 931, 932. This question has been heretofore very fully considered by this court in cases very analogous to the present, and the averments found in the petition in this case held to constitute a good cause of action. Wintz v. Morrison, 17 Tex., 372; Haldeman v. Chambers, 19 Tex., 2; Blythe v. Speake, 23 Tex., 431. The rules governing such cases are fully stated by the following elementary writers: 2 Benjamin on Sales, 921; 1 Benjamin on Sales, 674, 694; 1 Parsons on Contracts, 578; 1 Story’s Equity; 190b, 193; Pomeroy’s Equity, 876, 899; Pollock’s Principles of Contracts, 484, 488; Kerr on Fraud and Mistake, 53, 142. The general demurrer and the first and second special demurrers should have been overruled. As the appellants do not seek to rescind the contract, and only seek to recover damages resulting from the diseased condition of the sheep, we are of the opinion that the measure of damages which should be applied to the case made by the petition will be the difference between the sum paid for the sheep and their value in the condition in which they were, with a sum, by way of damages, equal to interest on such suna as may be found to be that difference, from the time the same was paid until judgment. The price paid is alleged to have been the reasonable value of the sheep had they been sound. ‘ If, howexmr, it should appear that all the sheep were not diseased at the time of the sale, but that subsequently others contracted the disease from such as were, then the appellants will be entitled to all such damages as they have sustained by reason of the disease being [293] subsequently communicated to those not diseased at the time of the sale by contact with those so diseased, which will include the value of such as died from the disease and expenses properly incurred in care and attention to them. Wintz v. Morrison, 17 Tex., 385. It is alleged that some of the sheep did not belong to the appellee at the time he made the sale. If so, as to those, the appellants are entitled to recover the sum paid for them, with interest thereon from time of payment. The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered May 26, 1885.]