Buford v. Carter

7 Ky. Op. 546, 1874 Ky. LEXIS 200

• Court: Court of Appeals of Kentucky
• Decided: March 3, 1874
• Status: Published

Opinion

Opinion by

Judge Pryor:

The( purchase of the mare was concluded at the residence of the appellant on the morning succeeding the county court in Shelby. The animal was then warranted sound and a good work mare, but proved in a short time,, to be utterly valueless by reason of its unsound condition when the sale took place, and still the appellant is denied the right of recovery. The verdict is not ;only against the evidence, but palpably so. The proof not only shows the warranty, but conduces strongly to establish knowledge on the part of the appellee, or rather his assignee, of this unsoundness when the sale was made. If he "knew this fact, or that her eyes were defective, it was the vendor’s duty to have so told the appellant, and failing to do- so would be liable in damages.

There is a paragraph in the petition alleging the scienter, and the second instruction should have been given with some slight alteration in its language. , If the mare, at the time of the sale, had defective eyes and the plaintiff’s assignee knew this fact, it was his duty to have informed the defendant, and if he failed.to do so the plaintiff is entitled to recover. The judgment of the court below is .reversed, and the cause remanded with directions to award a- new trial and for further proceedings consistent herewith.