Fisk v. Hicks

Bell, J. The rule of damages, in actions founded on a breach of warranty upon the sale of personal property, and in actions for deceit in the sale of personal property, where the property remains in the hands of the purchaser, as settled by this court, is understood to be the difference between the value of the property as it would be if the warranty or representation were true, and its value as it really was at the time. 2 Greenl. Ev. § 262; Caswell v. Coare, 1 Taun. 566; Fielder v. Starkin, 1 H. B. 17; Curtis v. Hannay, 3 Esp. 83; Buchanan v. Parnshaw, 2 D. & E. 745; Egleston v. Macauley, 1 McCord 379; Armstrong v. Piercy, 5 Wend. 539, there cited; and see Cary v. Gruman, 4 Hill 65; Willis v. Dudley, 10 Ala. Rep. 933; Cothers v. Keever, 4 Barr 168; Kornigdy v. White, 10 Ala. Rep. 255; Clare v. Maynard, 7 C. & P. 741; 2 Phil. Ev. 105; Bridge v. Wain, 1 Stark. Rep. 504; Cox v. Walker, 6 Ad. & El. 523. This is also the rule adopted by the court in actions for a breach of the covenant of seizin of real estate. Parker v. Brown, 15 N. H. Rep. 176. There is a large class of cases elsewhere, where the rule •of damages is held to be the difference between the real value -of the property warranted and the price paid, with interest. It is not necessary to refer to them more particularly. In Parker v. Brown, it was held that the consideration [539] paid was evidence of the value of the land at the time of the sale; and in many cases it has been held that the consideration paid is evidence of the value of personal property warranted, if the warranty was true. Kary v. Gruman, 4 Hill 625; Clare v. Maynard, 7 C. & P. 741; Cox v. Walker, 6 Ad. & El. 523. The same rule was applied, as we think, in the case of Hodge v. Kimball, in Coos. In the present case, there was no pecuniary value affixed to the animals exchanged. The price agreed on for the warranted horse was the mare and fifteen dollars. If the jury should be able to ascertain the value of the mare in money, that value and fifteen dollars was the consideration paid for the horse, and the consideration paid is proof of the actual value of the horse, if he had been as he was represented. To enable the jury to judge of this value, it was proper they should consider any evidence which might be presented to them, proper to fix the value of the mare, just as they would have received evidence of the value of uncommon foreign coin, as ducats, for example, if all but the fifteen dollars had been paid in such coin. It is not suggested that the evidence received of the value of the mare was improper, if it was fit that any evidence, on that subject, should be admitted. There was, then, we think, no valid objection to this evidence. Objection is taken to the charge given to the jury. As we understand this charge, the idea intended to be given to the jury was, that they were to ascertain the value of the grey horse, as it would be if he was sound as he was represented to be, and as the defendant was induced to believe him to be by the false statements of the defendant, and what the same animal was, in fact, worth, being unsound at the time of the exchange, and the plaintiff would be entitled to the difference between those sums as damages and such other damages, if any, as were the natural and ordinary results of the defendant’s fraud. That to determine what was [540] the value of the grey horse, they might, among other things, consider what was the value of the plaintiff’s mare, and the fifteen dollars paid as boot, the plaintiff having been permitted to put in evidence a description of his mare, to enable the jury to judge of her value. So understood, the charge seems to us correct and unobjectionable. So it is alleged to have been by the counsel for the plaintiff, and so obvious does it seem to us that the expression “ and the $15 which was paid as boot,” was inserted where it is instead of its natural place, after the words “ value of the plaintiff’s mare,” by a mere error in transcribing, that the leave asked to obtain an amendment will be granted to make the fact certain. If the case is now correct, the charge was erroneous. The court charged the jury that if they found the horse so sick and diseased, at the time of the sale, that he would die, as the defendant said, and he warranted him sound, they would find the defendant guilty, though they should not find that the horse bad the disease technically called glanders. It is contended that this instruction was not correct, and that the declaration is not sustained, unless the breach is proved, as it is alleged, that is, that the horse had the glanders, and that it is not enough to prove that the animal was otherwise sick and unsound, as stated in the declaration. It is generally true, in declarations for torts, that surplus-age does not vitiate. A party proves such of the allegations of his writ as he can, and his failure to prove other statements does not prevent his recovery, if he proves any good ground of action. The rule is stated in 1 Chit. PI. 307, thus : “ With respect to what statements are necessary to be proved, the rule seems to be that if the whole of the statement may be struck out, without destroying the plaintiff’s right of action, it is not necessary to prove it, but otherwise, if the whole cannot be struck out, without getting rid'of a part essential to the cause of action, for then, though [541] the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover. Williamson v. Allison, 2 East 452; Mersey Co. v. Douglas, 2 East 502; Kellner v. Lamesurier, 4 East 400; Savage v. Smith, 2 Black. 1104; United States v. Porter, 3 Day 283; Jerome v. Whitney, 7 Johns. 321; Prec. of Dec. 83. Was there here a sufficient breach, without the clause describing the nature of the disease ? “ In general,” says Chitty, (Pl. 326,) “ if a breach is assigned in words containing the sense and substance of the contract, it is sufficient.” Com. Dig. Pl. C. 46. In 2 Chit. Pl. 101, are given forms of declarations on warranties of the soundness of horses, where the breach is thus alleged : “ Nevertheless the said (defendant,) contriving, &c., did not perform or regard his said promise or undertaking, &c., but thereby craftily and subtilly deceived and defrauded the (plaintiff) in this, to wit: that the said horse, at the time, &c., was not sound, but, on the contrary thereof, was unsound,” &c. And in a note, it is added that “ the particular description of unsoundness needs not to be stated, it being a general rule, in pleading, that the breach may, in general, be assigned in the negative of the words of the contract.” Com. Dig. Pl. C. 45; 2 Saund. 181, b. n. 10; Harris v. Mantle, 3 D. & E. 307. Here the breach that the defendant’s horse was not well and sound, except a little tender in his forefeet, but was otherwise sick and unsound, was a sufficient breach, and the whole allegations relative to the glanders may be struck out, and a good cause of action remains well alleged. This clause, then, seems to us to have been justly regarded by the court as immaterial, and the instruction to the jury relative to it was correct. If the amendment asked is made, the plaintiff will have judgment, otherwise a New trial ordered.