Nash, J.
¶1
Action on the case for deceit and false warranty in the sale of horses. It is unnecessary here to state the case at length. The principles of law, deducible from the evidence, are set forth in the Judge’s charge; and the exception is to the instructions at large.
¶2
The first instruction is, that, if the defendant, Blackwell, sold the horses to the plaintiff, and represented that they had the distemper, a disease which would last but a short time and do them no injury, but at the
same time knew
that they had a fatal disease, called the glanders, of which, the plaintiff was ignorant, they should render a verdict for the plaintiff. There certainly can be no objection to
this
charge — the defendants’ liability is strongly and fully put on the ground of fraud practised by him. The 2d, 3d, 4th and 5th. branches of the charge were in favor of the defendants, and they cannot complain of them.
¶3
The main argument was upon the 6th branch of the instructions. It was as follows: “ If the plaintiff took the horses at his own risk, with all faults, and Blackwell used no artifice or contrivance to cheat or defraud him, they should find for the defendants : That he was under no obligation to disclose any defects, if the plaintiff agreed to take
*61
the horses at his own risk ; but that this rule would not apply, if artifice or contrivance was resorted to for the purpose of throwing the plaintiff off his guard, and thereby to cheat and defraud him.” This portion of the charge is nearly in the language of this Court in the case of
Smith
v
Andrews,
8 Ire. 6, and it fully sustains his Honor, the presiding Judge. When a vendee takes an article at his own risk or with all faults, he becomes his own insurer, and the seller is relieved from all obligation to disclose any fault, he may know the article has ; but he must resort to no trick or contrivance to conceal the, defect or mislead the purchaser.
Pickering
v
Dawson,
4 Taun. 779. There is no error in law in the charge, and in every form in which it is put by the Court, the jury have found against the defendant upon the question of fraud.
¶4
Per Curiam. Judgment affirmed.
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Case posture Posture APPEAL from Bailey, J. , at ROCKINGHAM, Spring Term, 1851. Case for deceit and false warranty in the sale of horses.
William B. Grant, witness for the plaintiff, testified that the plaintiff, a resident of Guilford County, came to his tavern in Statesville, at the Superior Court in April, 1848; that the defendant Blackwell put up at his house with his two horses on Tuesday of court, and told him he wished to sell his horses; that he learned from the plaintiff that he wished to buy; that on that day or the next the parties (50) came before him and told him that they had swapped horses; that the plaintiff had received of the defendant Blackwell two horses, and the defendant Blackwell had received of the plaintiff one horse and one hundred dollars in money; that he counted the money at their request, a part of which the plaintiff borrowed of the witness Hunt; that he heard the defendant Blackwell say the horses had the distemper, but
whether before or after the trade he did not know; that the plaintiff left Statesville towards the last of the week, on Friday or Saturday; that the weather was cool and rainy.
Jason Hunt, the plaintiff's witness, testified that he went with the plaintiff from Greensboro to Statesville the first week in April, 1848; that he took with him two buggies to sell; that the plaintiff went to buy horses; that he stayed at Statesville during the week of the Superior Court; that the defendant Blackwell proposed to sell to him his two horses for buggies, took him to the stable of the witness Grant and showed him the horses; that the horses seemed to be laboring under distemper; that Blackwell told him that the horses had distemper; that one had it about four weeks and was getting over it, and the other horse had it about two weeks, and it was then at its worst; that he lent Pearce $10 to aid him in paying the $100; that he saw the horses some few weeks afterwards in the possession of the plaintiff, and that they had the glanders; that he had once owned a horse that had the glanders, a fatal disease; that the horses, when he saw them the second time, were worth nothing, but had they had only the distemper would have been worth $225 or $250, and that the period of distemper with horses generally was about a month.
Reuben Ross, the plaintiff's witness, testified that he was at Statesville at February court, 1848; that the defendant Long, who was a brother-in-law of the defendant Blackwell, proposed to sell him a (51) pair of horses; said he had two horses to sell; showed him in the stable one of the horses; said the other was at Blackwell's; said the horses, or one of them, had the distemper badly, but was getting better. Witness asked him if he would take a buggy in part pay for the horses; Long replied that Blackwell had a buggy. The witness declined to trade, but saw the same horse he had seen in Statesville in the possession of the plaintiff in Greensboro in April, 1848, and that the horse had the glanders; that he did not examine the horse shown to him at Statesville, but the horse seemed to be healthy and had good hair.
W. J. McElray, the plaintiff's witness, testified that the defendant Blackwell drove the horses by Oak's Ferry, in Davie County, about the first of February, 1848; proposed to sell the horses to the witness; that Blackwell said the horses had common distemper — had had it a short time, and were getting well; that he saw one of the horses had what he supposed to be distemper; that the wife of the witness was not pleased with the horses, and he declined to buy; that the plaintiff passed with his horses by his house on Saturday about 3 o'clock p. m., on his way from Statesville to Greensboro, about the first week in April, 1848; that the weather was cool and rainy; that it is 35 miles from Oak's Ferry to Statesville; that in May, 1848, he saw the horses again in
possession of the plaintiff; that the horses were greatly reduced, and seemed to have glanders, though he was no judge.
C. A. Gillespie testified that he resided in Greensboro; saw the horses in April, 1848, the next day after the plaintiff got home, and on examining them was satisfied that they then had the glanders, and so informed the plaintiff; that glanders is a disease very fatal with horses; that he had managed and had much to do with horses; that moderate exercise with horses affected with distemper was good for them, but that, in the first stage of distemper, hard driving and exposure might do injury; that distemper rarely affected horses longer than four (52) weeks; that persons having the care of horses affected with the glanders for three or four months would, in his opinion, discover that the disease was not distemper.
William B. Wooller, the plaintiff's witness, testified that he, in May or the first of June, 1848, went with the plaintiff to the defendant Blackwell's house in Iredell County to tender to him the horses; that he rode one of the horses and the plaintiff the other; that they walked the horses most of the way; rode moderately; that they expected to stay the first night at Oak's Ferry, 40 miles from Greensboro, but were disappointed; that they went on in the night 5 miles further; got to Blackwell's house next day; saw the defendant Long first, the defendant Blackwell being from home; the plaintiff asked how long the horses had had the distemper, to which he replied he had discovered that one had it when he returned from the North the December before; that Blackwell returned home in a short time; that the plaintiff tendered to him the horses, demanded his horse and the money, and said to Blackwell that he had told him the horses had distemper, when in fact they had the glanders; Blackwell replied that he had sold them as diseased horses; the plaintiff said he had sold them as distempered horses, and he would sue him. Blackwell said he would sue the plaintiff; that his horse was not such as he represented him to be; that the plaintiff was a stranger to him; that he expected he would come back, and that he had his witness fixed expressly for him. The plaintiff said no one was present, and if he had a witness he must have been hid; that in a conversation that occurred some fifteen or twenty minutes afterwards, Blackwell said that one Needham had told him that the plaintiff was dissatisfied with the swap and was going to bring the horses back; that he had had much to do with horses, and that the horses had the glanders. He also stated that Blackwell said there had been no glandered horses in (53) his neighborhood.
John Hiatt, the plaintiff's witness, testified that he had dealt much in horses; had bought and sold a great many; that at Guilford Superior Court in April, 1848, he bought these two horses of the plaintiff; thought
they had the distemper when he got them; took them home; discovered in two or three days they had the glanders; that glandered horses are worth nothing; that he returned the horses immediately to the plaintiff, who took them back again; that the usual period for distemper to remain with horses rarely exceeds four weeks; that distemper did not materially impair horses in value, not being considered a dangerous disease; saw Pearce, the plaintiff, afterwards sell the horses at public auction in Greensboro, when one brought a dollar and the other brought $1.87 1/2.
Labeccus Gaither, the plaintiff's witness, testified that in the month of November, 1847, he thought about the middle of the month, he hauled a load of corn to the defendant Blackwell's; that he showed him these horses; called them his match horses; that Blackwell told him they had the distemper, and had had it some time; that some time afterwards Blackwell rode one of the horses to his house and led another horse; wanted to sell the horse he led to his son; that he saw the defendant Blackwell in February, 1848; that Blackwell wanted to sell him one of the matches; that he declined to buy; that the horses still had something like the distemper; that Blackwell tried at the same time to sell him a horse that belonged to another person who accompanied Blackwell on that occasion; that he examined the eyes of the horse, saw the eyes were defective, and mentioned this to Blackwell, who replied he had not discovered it before; that he lived within five or six miles of Blackwell, and that he, Blackwell, dealt a great deal in horses. He also stated that when Blackwell offered to sell him one of the said match of horses (54) in February, 1848, he told the witness if he would buy he would take less than he offered to take before.
Amos Sharp, the plaintiff's witness, testified that he lived within about two miles of the defendant Blackwell; that Blackwell dealt in horses; that during the fall of 1847 and the winter and spring of 1848 he had a glandered horse; that his horse got gradually worse until he shot it in 1849; that he never knew his and the defendant's horses to be near each other; that after the plaintiff got the horses from Blackwell he heard the said Blackwell say, either that he had limed his troughs or intended to lime them. The witness further states that it was a common thing in that neighborhood to lime troughs after horses had had distemper.
Miles Dobbins, the plaintiff's witness, testified that he was at Statesville on Tuesday of April court, 1848; that the defendant Blackwell took him to the stable and offered to sell him the horses; told him they had distemper; that one was very bad off with it; that he considered the other near about well; that witness examined the horses; saw some small sores about one of the eyes of one of the horses; asked Blackwell
if the thought distemper caused them; Blackwell replied he thought it did. The witness told Blackwell the horses did not suit him. Blackwell said to him, Make me a bid. The witness declined. Blackwell said the reason he wished to sell was because he had too many horses.
Oliver H. Farrington, the plaintiff's witness, testified that in the latter part of April and the first part of May, 1848, he went with the plaintiff from Greensboro to Laurel Hill, distant about 100 miles; that they drove those two horses in a two-horse wagon; hauled down a barrel of whiskey and a box of tobacco; were gone eighteen or twenty days; good weather; drove moderately — from 18 to 25 miles each day; drove home empty; that great care was taken in feeding and rubbing off the horses; that the horses gradually declined, and seemed to be (55) worse.
Silas D. Sharp, the defendant's witness, testified that he was at Statesville on Monday of April court, 1848; that he went with the plaintiff and the defendant Blackwell to the stables; that Blackwell showed the plaintiff his horses; that the plaintiff said they looked badly. Blackwell replied, Yes, they have the distemper, I believe, and if he traded for them he must take them as they stand, to which the plaintiff made no reply. That the plaintiff and Blackwell went into the stable to the stall, in which stood the plaintiff's horse, when the plaintiff said his horse was lame with the swinny, and if he took him he must take him as he stood; that the defendant Long came also to the stable; had with him the child of Blackwell; requested him to keep the child, which he did; that the plaintiff, Blackwell, and Long were in the stable together a short time out of his hearing; that the terms of the trade he did not hear; that when they came out Blackwell said he had lost $30 in the trade, but he thought that better than to rub and fatten them up; that he was present when the one hundred dollars was paid over; the plaintiff borrowed a part of the money; that he had once owned one of the horses, which he sold to the witness Cowan in August, 1847; that the horse while he owned him, in March, 1847, had the farcy; broke out in two sore places on the body behind the forelegs; that he washed with soft soap these sores and they soon got well and haired over; that he saw sores were again breaking out on the horses; that he said nothing about these sores because he did not think they would ever injure the horse; that with this exception, the horse was perfectly healthy and sound while the witness owned him; that the witness desired to own the horse again, and had gone to the stable on that day to buy the horse if he could get him for $85.
William F. Cowan, the defendant's witness, testified that he (56) owned both the horses; purchased one from Silas Sharp in August, 1847, to match the other; that he kept them until 3 November,
1847, when he sold them to the defendant Blackwell; that the horses were perfectly sound and healthy all the time he owned them, and were so when he let Blackwell have them; that he saw them repeatedly afterwards while Blackwell owned them; that he saw nothing the matter with either of the horses until 1 January, 1848; that one of the horses seemed to be bad off with the distemper; that Blackwell told him he had been offered a certain price for the horses; that he told Blackwell he thought he ought to have taken it, as he feared the horses might have the glanders; that Blackwell said he thought they did not have the glanders, because they improved, and he thought they would soon be well; that he had expressed his fears to others, but did not recollect having expressed them to the witness Jacob Conay; that he saw the plaintiff in the streets of Statesville on the afternoon that he left Statesville; asked him what he had given, and whether Blackwell had sold the horses to him as sound, to which the plaintiff replied that he had taken the horses as sound up to the time they took the distemper, and that he had paid $100 and a piece of a horse; that it was a wet, cold day, and the weather continued so until Sunday, when it faired away. He also stated he was induced to suspect glanders because there was a mare in the neighborhood diseased in such a way as induced him to think she had the glanders; that the mare did not die, but lived and had two colts, and that he changed his opinion as to Blackwell's horses, and thought they had the distemper only.
James Claywell, witness for the defendants, testified that he was the defendant Blackwell's clerk; lived with him; that he did not know that either of the horses had had distemper until about a week before (57) Christmas, 1847, when he drove one of the horses to Clemmonsville, and discovered for the first time that he had a cough; that the other horse did not have the distemper until about two weeks before April court, 1848; that he was sitting in the store while the plaintiff, the defendant Blackwell, and the witness Wooller conversed; that the plaintiff told Blackwell he had traded the horses to him as having the distemper, when in fact they had the glanders; that Blackwell refused to take back the horses; told the plaintiff he had taken them as diseased horses. Pearce replied, You can't prove it. That he expected him to come back. Did not recollect that anything was said about a witness being fixed, or about Needham; that the defendant Blackwell limed his troughs after the plaintiff got the horses; that he never discovered anything about the horses but distemper, and thought the horses had the distemper; that the defendant Blackwell bought a mare after he let the plaintiff have the horses; that she had the distemper when the defendant Blackwell got her; that he kept her in a stable to herself; that she got well, and the defendant Blackwell afterwards sold her.
William Taylor, the defendant's witness, testified that he was a brother-in-law of the defendant Blackwell; that he worked the horses about the first of March, 1848, and that he thought they had the distemper; that he worked them about a week in a team with two of his own horses; watered them with the same bucket; that they performed well, and he thought they had nothing but the distemper, and his horses took no distemper.
Robert Baxter, the defendant's witness, testified that he had much to do with horses; that he saw the horses shortly after the plaintiff got them, and he thought they had the distemper; that he had known distemper to continue with one or two horses as long as five or six weeks; that exposure and hard work would injure horses afflicted with the distemper.
Jacob Conay, the plaintiff's witness, testified that the (58) defendant Blackwell tried to sell his son one of these horses, and at another time tried to sell one of them to him; said they had the distemper; that this was a short time before the plaintiff got them; that he asked the witness Cowan about the horses, and Cowan told him not to trade for them, that they had the glanders; that the defendant Blackwell, after he parted with the horses, whitewashed the inside of his stable and the trough; that the defendant Blackwell traded in horses.
Joel McLean, the plaintiff's witness, testified that he had managed and dealt in horses for many years; that glanders and distemper were two separate and distinct diseases, resembling each other; that distemper continued would turn into glanders; that glanders was often produced by distemper; that farcy is intimately connected with glanders; they will run into each other, or their symptoms will mingle together, and before either arrives at its fatal termination its associate will almost invariably appear. An animal inoculated with the matter of farcy will often be afflicted with glanders, while the matter of glanders will frequently produce farcy. They are different types or stages of the same disease. That moderate exercise is good for distemper, while exposure and hard labor are injurious to horses in the incipient state of distemper; tended to inflame and diffuse or scatter the disease through the system. That distemper was generally considered harmless. That horses were rarely affected with distemper longer than four or five weeks — more generally a shorter space of time; that glanders would likely in all instances be detected in less time than three or four months; that glandered horses would often eat heartily, keep in fine order, and do service for a long time, and some few horses would recover, but the disease was generally fatal.
Several witnesses testified that the general character of all the witnesses on both sides was good.
(59) The counsel for the defendants moved his Honor to charge the jury that if they believed that the trade was upon the terms stated by the witness Silas Sharp, it was immaterial whether the horses had common distemper or glanders, or whether the defendants knew it or not, or whether the fact was disclosed to the plaintiff or not, the defendants were entitled to a verdict.
The court charged the jury that if the defendant Blackwell sold the horses to the plaintiff, and represented that they had the distemper — a disease which would last but a short time and do them no injury, but knew at the same time that they had a fatal disease called glanders, and the plaintiff was ignorant of this — they should render a verdict for the plaintiff, and the measure of his damage would be the difference between the value of the horses with the distemper and what they were worth having the disease called glanders. That if they were not satisfied that the horses had the glanders, they must find for the defendants. That if the horses had the glanders, and the defendants did not know it, they should find for the defendants. That if the plaintiff knew as much about the disease which the horses had as the defendants, they should find for the defendants. That if the horses had the glanders, and it was brought about by hard driving or improper exposure to the weather by the plaintiff after he purchased them, they should find for the defendants. That if the plaintiff took the horses at his own risk, with all faults, and Blackwell used no artifice or contrivance to cheat or defraud him, they should find for the defendants. That Blackwell was under no obligation to disclose any defects if the plaintiff agreed to take the horses at his own risk; but that this rule would not apply if artifice or contrivance was resorted to for the purpose of throwing the (60) plaintiff off his guard and thereby to cheat and defraud him; and whether this was done or not was a question entirely for them. That if they should be satisfied that the defendant Long had nothing to do with the trade, and did not participate in the fraud, if the other defendant was guilty of any, they could find a verdict against one and in favor of the other.
Under this instruction the jury found a verdict against Blackwell and in favor of Long.
Rule for a new trial; rule discharged, and defendant Blackwell appealed to the Supreme Court. Source: CourtListener
