Chadsey v. Greene

Hinman, J. The action was for a false warranty, with a count for fraud, in the sale of a horse. It was therefore competent for the plaintiff to introduce any evidence, calculated to sustain either claim. The defendant, having made strong representations in regard to the’good qualities of the horse, that he had been to New York for the purpose of buying him for his private use, and, after a thorough trial, was satisfied that he was sound and safe for any purpose, and just such a horse as he wanted to keep, that he had bought him for three hundred dollars, to induce the plaintiff to purchase him, assured him that his representations might be relied on, and that he was willing to give a satisfactory war [572] ranty. The defendant replied that the plaintiff was a stranger, of whose character, standing, or responsibility, he had no knowledge, and he would not therefore purchase him. To obviate this objection the defendant introduced one Neff- to the plaintiff, and referred to him for information regarding the defendant’s character and responsibility; whereupon Neff made the representations that are objected to. Now, by the rules of law, it is clear, that the representations of Neff, under the circumstances, bind the defendant in the same manner, that he would have been bound by them had he made them himself. 1 Green. Ev., § 182. The defendant’s counsel admit this. Hence, the only question here is, whether Neff’s representations were any of them of a character to deceive the plaintiff; for they are claimed only under the count for fraud. In order to accomplish a fraud, such as is claimed in this case, it was important that the plaintiff should have confidence in the fairness and integrity of the party, with whom he was dealing. And it appears to us that the representations of Neff were well calculated to give the plaintiff this false confidence in the defendant. The horse had some symptoms of being lame, and in fact was lame, and circumstances went to show that the defendant artfully concealed this from the plaintiff; to accomplish this, the defendant represented that such faltering, as appeared in the horse, was only a temporary stiffness, caused by the horse taking cold; and to impress the plaintiff with confidence in these and other representations, Neff appears to have been used ; and he certainly did give the defendant a very high character, as a wealthy farmer of great respectability, who was unaccustomed to deal in horses, and whose representations might be implicitly relied on. Now, as a part of the means employed to impose on the plaintiff, we think this evidence was admissible. It was part of the transaction, by which the plaintiff was induced to repose confidence in the defendant. And it is no answer to say that some of the declarations of Neff are [573] immaterial. Such as are now claimed to be so, were not objected to, on that ground, at the trial. But the objection was to the whole of his declarations, on the ground that the defendant was not present when they were made; and as we think that so much of his conversation, as went to inspire confidence in the defendant as a man of probity, is admissible, there was no error in the court in admitting it. The charge, taken as a whole, we think was adapted to the case, and was not incorrect in any principle of law ; and it substantially answered all the calls of the defendant for a charge upon particular points in the case. It is true, undoubtedly, that a general warranty does not extend to visible defects. But we see nothing in the charge, which conflicts with this principle. On the contrary, the jury were so told expressly. It appeared, however, that on one occasion, the plaintiff noticed the faltering of the horse, and on mentioning it to the defendant, he remarked that he noticed it also; but said it was a slight temporary stiffness, caused by weariness, and exposure to cold on the steamboat, and in the cars. Assuming, as we must on this point, that this was false, and, also, that the horse was known to the defendant to be permanently lame, we think the court was correct in saying to the jury, that seeing the horse limp, or falter, was not an answer to the plaintiff’s claim, unless such limping, or faltering, indicated plainly and unequivocally, that the horse was unsound, and not merely laboring under a temporary injury. The principle is as well stated in 1 Sw. Dig., 381, as any where. Plain and obvious defects are not covered by a general warranty. But if they are not discoverable by the eye ; if they require skill to discover’them, though apparently the object of the senses, the warrantor is responsible. A man may warrant against obvious defects; and the reason why a general warranty does not cover them, is because it is presumed they are not intended to be included in it, being known to the parties before the warranty is given. [574] But where they are not so known to the purchaser, as where he is blind; or the vendor uses art to conceal them, and succeeds in concealing them from the purchaser, the reason of the rule ceases, and the warrantor ought to be responsible for them. Taking the charge, then, in connection with the circumstances of the case, considering the means used to conceal the permanent character of the lameness, and the fact that the distinction, between a permanent and temporary lameness, is not very apparent to an unskilful man, we think the court was justified in saying to the jury, that the faltering ought, plainly and unequivocally, to indicate a permanent unsoundness, in order to prevent the defendant’s liability upon the warranty. It was made a point in the case, that the court did not respond to the claim of the defendant, that the jury should be specifically charged upon the special issue. In the defendant’s second plea, the warranty is set out, and it is alleged that the horse was not otherwise unsound, except that he was lame, and the lameness was plain, open, and obvious to the sight, and the plaintiff saw, and knew, that the horse was lame; this is traversed, and the horse is in the replication, alleged to be otherwise unsound. It is obvious that there is nothing in this plea, that it was not competent for the defendant to prove under the general issue, and we think the charge, which we have been considering, sufficiently applicable to this issue, whether it be considered under the special issue, or as involved in the general issue. It answered every point in issue in the case; and it was unnecessary for the court to say to the jury, that if the defendant had satisfied them that the second plea was true, he was entitled to their verdict, because this was involved in that part of the charge which informed them, “ that the general warranty of soundness did not extend to defects, plainly discoverable by the eye, and obvious to the senses.” [575] Upon the whole case, therefore, we do not advise a new trial. In this opinion, the other Judges, Storrs & Ellsworth, concurred. New trial not granted.