Pinney v. Andrus

41 Vt. 631

• Court: Supreme Court of Vermont
• Decided: January 15, 1869
• Status: Published

Opinion

The opinion-of the court was delivered by

WilsoN, J.

This is an action on the case, declaring in several counts for false warranty of certain sheep. The first question presented is whether the plaintiff, at the time of the trade, had such knowledge of the unsoundness complained of as to render an express warranty inoperative. The case shows that the parties, on the first day, settled the terms of a valid executory agreement; and the plaintiff’s testimony tends to prove that, as part of that agreement, the defendant warranted the sheep sound and free from footrot, and that the plaintiff entered into the agreement relying upon said warranty. On the second day the plaintiff went to the defendant’s to pay for the sheep as agreed, when he discovered they were unsound, and believed they had the footrot. He then offered to rescind the trade, requested the •defendant to repay the $100, and keep the sheep, which the defendant refused to do. The defendant then repeated (as the testimony tends to show), his statement made on the first day, “ that the sheep were sound and free from the footrot; that he would warrant them so,” and added, “ that their lameness was caused by running in the mud.” It is quite clear that there was but one trade; it was commenced on the first day, and consummated on the second. There was but one warranty as to the soundness of the sheep ; it was made (if made at all), on the first day and reasserted on the second. The two interviews are to be regarded as parts of the sale, and whatever was said or done at either interview, in relation to the trade, should be regarded as part of the contract on which the plaintiff had a right to rely. The plaintiff’s testimony leaves no doubt that he had reason to believe, on examination of the sheep, on the second day and before the trade was consummated, that they had the footrot. But it seems to be now well settled that the rule of law which exempts a vendor from liability upon a general warranty of soundness, where the defect is perfectly visible and obvious to the unaided senses, does not extend to an apparent defect, to understand the true nature and extent of which requires the aid of skill, experience or judgment. Nor is the rule applicable to a case'where the vendor has resorted to any acts or representations in respect to the property, intended or naturally calculated to throw the purchaser off his guard, and induce Mm to omit such thorough examination of the condition of the property as he might, and very likely would have made, if he had relied solely upon his own judgment in making the purchase. Nor has that rule any application to the case of a special warranty against a specified defect. 1 Parsons on Con., 576 ; Chitty on Con., 396 ; Chadsey v. Green, 24 Conn., 562 ; Hill v. North, 84 Vt., 604; 1 Smith’s Lead, cases, 221. A vendor may warrant against a defect which is. patent and obvious, as well as against any other. 1 Parsons on Con., 576, note h. The declaration alleges a special warranty against the footrot; the breach alleged is, that the sheep had the footrot. This breach of the special warranty was proved, and entitled the plaintiff to recover, without any regard to whether the existence of the disease was obvious and discoverable, or was discovered and known by the plaintiff when, 'be made the purchase. It is said by the defendant's counsel that the gist of the action is deceit; that a recovery in this form of action, either by proof of a representation known to be false by the party making it, or of an express warranty whether so known to be false or not, is for the fraud, and that the plaintiff could not be deceived by any representation when he saw and believed to the contrary of it. But it will be seen that where the plaintiff declares upon a warrantizando vendidit, alleging a scienter of the falsity of the warranty, though he may recover, either upon the express contract, or, if the scienter be proved, for a deceit, the grounds of recovery are independent of each other ; one is governed by rules of law applicable to a contract, and breach of it; and the other by the law applicable- to fraud perpetrated in making a contract, but the fraud is neither a part of the contract, nor essential to a recovery upon it. If a warranty be proved, it binds the defendant, by its own force, without proof of the scienter, if the warranty is broken. Every such warranty includes a representation; if known to be false by the party making it, the deceit is established, and the plaintiff’s right of recovery, upon both grounds, is' made out. But a representation, known to be false by the party making it, may be insufficient to constitute an express warranty, and yet be sufficient to entitle the plaintiff to recover for the deceit. A representation, if intended as a warranty, and so understood and acted upon by the parties in making the trade, may constitute an express warranty, and render the defendant liable upon the contract of warranty, and yet be insufficient to make him liable for deceit. So that the plaintiff, in this form of action, may recover, by proof of a representation known to: be false by the party making it, on the ground of deceit, even'though the representation which constitutes the deceit is not sufficient to constitute a warranty: or he may recover by proof of an express warranty and breach of it, though the representation or promise which constitutes the false warranty does not constitute deceit, because not known to be false by the party making it.. Therefore, if deceit be proved, the plaintiff is entitled to recover for the fraud ; or if he fail in this, but prove an express warranty, he must rely upon the warranty as a ground of recovery. The warranty is a part of the contract of sale; the action, in respect to the warranty, is founded upon the contract, and his case must bo made out in the same manner as if his action had been assumpsit on the warranty, and his right of recoyery on the warranty does not depend upon proof of actionable deceit or fraud. If it were necessary to proye deceit where the plaintiff relies upon an express warranty as the ground of recovery, then the warranty would be of no avail, because proof of deceit is a sufficient ground of recovery without the aid of a warranty. In this form of action, as well as in assumpsit on the warranty, proof of the contract and breach renders the defendant liable, and where the plaintiff claims to recover on this ground, it is not necessary to allege the scienter, and if alleged it need not be proved. Beeman v. Buck, 3 Vt., 53 ; Vail v. Strong, 10 Vt., 457 ; 27 Vt., 720.

II. On the subject of damages we think the charge of the court can not be sustained. It first states the general rule of damages applicable to breach of warranty,, and then concludes with instructions which would allow the jury to assess damages, resulting not only too remotely from the original unsoundness, (if resulting at all from that cause,) but also not recoverable under the declaration. The general rule, as to the grounds on which damages may be recovered for the breach of an express warranty, is not sufficiently definite for the guidance of the jury, but they should also be instructed as to what evidence tends to show the difference in value between the property sound and unsound, and what recoverable expenses have been seasonably, properly, and reasonably incurred, for doctoring and taking care of the sheep, in consequence of the unsoundness existing at the time of the sale. Each count of the declaration, relating to the footrot, contains sufficient allegations to sustain a recovery for the difference in value between the property sound and unsound, by reason of that disease. The second count contains the following allegations, viz.“ And the plaintiff avers that in consequence of being so-diseased, the said sheep were lame, and the plaintiff was put to-great expense and trouble in feeding, taking care of and endeavoring to cure the sheep so bought of the defendant.” This is the only averment of special damage, except that relating to the inferior value of tbe sheep, in consequeuce of the disease complained of. There is nothing in the exceptions tending to show fraud, nor tending to show breach of the alleged warranty that the sheep were “ full-blood, thorough-bred, Spanish Merino sheep but it would seem from the testimony that the plaintiff, on trial in the county court, relied solely on the alleged warranty against the footrot. The case states that the iDlaintiff, on the 10th day of December, went to the defendant’s to pay for the sheep as agreed, and to trim them for market; but there is nothing in the case tending to show that the defendant knew at the time the plaintiff bought the sheep ho intended to take them to a foreign market, nor tending to show that the defenclent knew the purpose for which the plaintiff made the purchase, or the use or disposition he intended to make of the property. The case, therefore, stands, in respect to the question of damages, upon the rule applicable to breach of warranty, where the warranty is given without knowledge on. the part of the seller as to the purpose for which the purchase is made, or the' use or disposition intended to be made of the property by the vendee, and the warranty can not be carried by intendment of law beyond its literal terms.

The first ground or item of recovery relates to the difference between the value which the property would have had at the time of the sale and ¡dace of delivery in this state if it had been sound, or corresponding to the warranty, and its value with the defect; or in other words, the difference between the value of the sheep somid and unsound, the unsoundnoss being caused by the footrot. Is the footrot a curable disease ? What length of time would be required to cure it ? What would be the probable expense of curing the disease, including the expense for doctoring and keeping rendered necessary in consequence of the defect ? Would the sheep be worth as much when cured as if they had not the foot-rot at the time of the sale; if not, how and to what extent would their value be lessened in consequence of having had the disease, that season of the year, so long only as would be required to effect its cure ? What other injury, besides the expenses for doctoring and keeping the sheep, would follow as a direct consequence of the defendant’s breach of warranty ? Would the disease return again without renewed exposure of tbe sheep ? When did the plaintiff first learn that the sheep were affected with the foot-rot, and did he, on discovering the disease, act in good faith and with common prudence and diligence in applying, and properly and thoroughly applying, such medicine as had been efficacious in that disease ? These are inquiries that would arise in determining the difference in value between the sheep sound and unsound, and unless the attention of the jury is directed to the testimony as to these points, we could hardly expect they would come to a correct result on the question of damages. The testimony tends to show that the footrot in sheep “ can easily be cured by proper treatment if the sheep affected by it are put in a clean place and kept from renewed exposure, and can be cured, under such circumstances in small lots of sheep, in three or four weeks.” The plaintiff suspected, when he bargained for the sheep, they had the footrot; he believed at the time the trade was consummated they then had that disease; and within three or four days thereafter he knew it was the footrot that caused their unsoundness. When the plaintiff discovered that the sheep had the footrot, and knew the remedy, or could on inquiry ascertain it, he was bound to act in good faith and to exercise ordinary care, skill and diligence in doctoring the sheep and endeavoring to cure the disease. The plaintiff could not delay applying the remedy and visit the consequences of such delay upon the defendant; but he was bound to proceed with all reasonable diligence and skill 'and apply the proper medicine thoroughly, and continue its application for such length of time as might be reasonable and necessary to eradicate the disease. The vendee in general has the possession and control of the property and treatment of the disease, and any relaxation of the rule above stated as to the care, diligence and skill required of him in respect to the treatment of the unsoundness, would render it uncertain whether the injury resulted directly from the original unsoundness, from neglect of the vendee seasonably and properly to apply the remedy, or from a cause that did not exist at the time of the sale. The case states that the plaintiff did, on the 14th of December, apply medicine and treat the sheep for the footrot; but whether he further treated them for, that disease after that, and while they remained in Vermont, does not appear. It appears that on or about the 20th of December, the sheep were token from Middlebury in this state to Newark, Ohio, whore they arrived on the Blst of December, so that the time they remained in Vermont, after the plaintiff discovered the disease in the sheep, was hot sufficient according to the tendency of the evidence to effect a cure, even if the disease had been properly and thoroughly treated. The first item in the plaintiff’s bill, relating to treatment of the disease, is for doctoring them from Juno 21, 1865, to April, 1866. The plaintiff says the sheep had the footrot all the time more or loss, and were treated for it.' By the expression, “all the time” the plaintiff evidently means, from the time he purchased the sheep till he sold them, about one half of which, he says, were sold in May, 1866 ; so that according to the plaintiff’s account of the matter, the foot-rot existed in the sheep about eighteen months, and he sold them while so diseased. Assuming then, what the uncontradicted evidence tends to prove, namely, that the footrot can easily be cured in .three or four weeks, by proper and thorough treatment, we conclude that the disease in the sheep, for so long a period, was in consequence of the neglect of the plaintiff to make proper and sufficient applications 'of the remedy for the unsoundness existing at the time he purchased them; or in consequence of disease contracted by renewed exposure of the sheep after that time.

Would a prudent man, knowing that a lot of sheep were affected by the footrot, knowing it could be cured, and having paid .such a price for them, take them to market before making a suitable effort to cure the disease ? However that may be, we think that the plaintiff, knowing as he did that the sheep were thus diseased and understanding it could be cured, should not be allowed to enhance the damages against the defendant, by his wandering with the sheep from place to place and from market to market, in the manner stated by him in his testimony. He ought to have known that such management of the sheep, and effort to market them while so diseased, would result in great loss. The vendor of property, sold with warranty against a specified defect, is liable for such damages as are the direct consequence of that defect; •but he is not liable for any damage or injury to the property or Tendee resulting from the neglect of the vendee to exercise ordinary care, diligence and skill in the treatment of the defect warranted against. Hitchcock v. Hunt, 28 Conn., 343 ; Marlett v. Clary, 20 Ark., 251. It is evident, upon the plaintiff’s own showing as to the manner in which he managed the property and treated the disease after he discovered the unsoundness, that the expenses thereby incurred by him furnish no guide in assessing .such damages as are the direct consequence of the defendant’s breach. Under the circumstances of this case, we think the question of damages must, as far as practicable, be tried just as it would have been tried the day on which the plaintiff first discovered the sheep had the footrot. Where the disease or unsoundness is curable, the difference in value between the property sound and unsound would depend, among other things, upon the expenses and cost of curing the unsoundness covered by the warranty. Assuming that the disease in those sheep might have been cured by proper and sufficient treatment, thereby incurring reasonable and justifiable expenses, one mode of arriving at the difference in value between the property sound and unsound would be to inquire, first, into the probable expenses of doctoring and taking care of the sheep during such reasonable time as would have been necessary to cure the disease if it had been properly and thoroughly treated from the time the plaintiff first discovered the unsoundness and its cause second, inquire into the probable expense for keeping the sheep during such time as would be required to cure the disease, or such time as the disease, seasonably and properly treated, would require the sheep should be kept for an advantageous sale of them, meaning such expenses for keeping as would not be incurred if the sheep had been sound. There is no such daily use of sheep, or profits realized daily, while keeping-them, as may be derived from horses or oxen when kept and used for team work; but the keeping of sheep becomes necessary, in order to derive from them annual profits, which arise from the growth of their wool, the growth of the sheep, or their annual increase, and it is in one or more of these ways that the expense of keeping sound sheep is compensated and in the same way the expenses of keeping unsound sbeep may be in part compensated, unless the nature or extent of the unsoundness be such as to render it unprofitable to keep them for any purpose. Third, inquire whether the plaintiff would have sustained damages, as a direct consequence of the defect warranted against, in addition to the expenses for doctoring and keeping the sheep, if he had treated the disease thoroughly and sufficiently from the time he first discovered its existence in the sheep. If besides these expenses the plaintiff would sustain additional injury as the direct consequence of the defendant’s breach, it would be a ground of recovery, if covered by the declaration. The plaintiff would not be entitled to recover any thing on the ground of a loss of profits.

III. From the views above expressed as to the rule of damages, it follows that so much of the testimony objected to, as relates to items not recoverable, should have been excluded. It is also objected by the defendant that the plaintiff was improperly allowed to testify from or refer to a certain memorandum produced by him on trial. It is obvious that a memorandum made from recollection merely, and so long after the alleged transaction to which it refers, would not be likely to aid the recollection of .the witness, or add to the weight of his testimony. If the court allowed the paper as evidence generally to refresh the recollection of the witness, we think it was wrong. But as a paper containing dates, figures and amounts within the recollection of the witness, but ■being matters which he could not carry in his mind, it might be referred to by him, not for the purpose of refreshing his recollection as to the correctness of the entries, but for the purpose of enabling him to state with accuracy the details of things of which he had from recollection made a memoradum, but could not carry them in his mind so as to be able to repeat them without the aid of the paper.

Judgment of the county court reversed and case remanded.