Terhune v. Dever

Walker, J. 1. Ought the Court to have granted a new trial in this case ? If the testimony be credible, it is pretty clear that the purchaser received no valuable consideration for the note. The mare purchased was not only worthless, but was an expense. The agent of the seller said she was sound, and defendant acted upon this representation and made the trade. Ought the plaintiff to receive pay for an article represented to be sound, and which was then unsound and worthless ? The Revised Code, Sec. 3117, says : “Misrepresentation of a| material fact, made willfully to deceive, or recklessly without I knowledge, and acted on by the opposite party, or if made? by mistake and innocently, and acted on by the opposite! party, constitutes legal fraud.” Fraud may exist from mis- ; representation by either party, made with design to deceive, or which does actually deceive the other party; and in the latter case such misrepresentation voids the sale, though the party making it was not aware that his statement was false. Rev. Code, Sec. 2592. [652] 2. No particular form of words is necessary to constitute a warranty. Ch. on Con., 453; 1 Par. on Con., 463; Sto. on Sales, Sec. 357. Every affirmation at the time of sale of personal chattels is a warranty, provided it appear in evidence to have been so intended. 3 Star. Ev., 1237-8. The tendency of all the modern cases on warranty, is to enlarge the responsibility of the seller, to construe every affirmation by him to be a warranty, and frequently to imply a warranty on his part from acts and circumstances, whenever they were relied upon by the buyer. Sto. on Sales, Sec. 359. 3. To make an affirmation at the time of sale a warranty, it must appear to have been so intended, and not to have been a mere expression of opinion. An affirmation of the soundness of a horse, made bona fide at the time of sale, does not necessarily amount to a warranty; whether the words used amount to a warranty or not, is a question for the jury, under the rules of law applicable to the case. If, however, the seller make any misrepresentations, which are acted on by the opposite party, though done innocently, by mistake, it constitutes legal fraud, for which the seller is responsible. While such misrepresentations may not in law constitute an express warranty, yet, inasmuch as fraud by one party, accompanied with damage to the other, in all cases gives a right of action, (Rev. Code, Sec. 2906) it may be laid down as a general rule that all representations made by the seller, and acted on by the buyer, become in effect a warranty that the property is equal to the representations. Of course there is a difference between representations of facts and commendations, which are the mere expression of opinion, and so understood by the parties; for the latter the seller is not answerable, while he is for the former, if they are acted on by the purchaser. 4. In case of a warranty of' the soundness of a horse, it is immaterial whether the warrantor knew of an unsoundness or not. In case of unsoundness, the warrantor is liable in either event. The warranty is given to protect the purchaser against unsoundn§ss, and his right of action exists by contract, irx*espective of any fraud on the part of the seller. [653] 5. We are inclined to think the Judge did not submit to the jury the rules applicable to the case with technical accuracy, yet he did so in effect; and as it appears from the whole case that justice has been done, a new trial should not be granted. Judgment affirmed.