Pepper v. Vedova

THE COURT.

This is an action to rescind a contract for the purchase of a team of horses. The plaintiff alleges that the defendant willfully, falsely, fraudulently, and deceitfully stated and represented to the plaintiff the said team of horses of which he was then and there possessed “to be a well matched team, to work together under harness for wagon and general farm work, not balky, no bad habits, physically sound and without fault, blemish, disorder or disease”; that the plaintiff not being a horseman nor experienced in horses or in their purchase, relied and depended upon the defendant’s aforesaid representations, knowing nothing to the contrary regarding said team; that the representations of the defendant were false in a number of essential particulars set forth in the complaint, of all of which the defendant had full knowledge at the time the representations were made. The complaint was otherwise sufficient in point of form as to the requisites of an action for rescission. The defendant did. not demur to the complaint, but answered, specifically denying its averments, and the cause went to trial upon the issues thus presented.

The court found that the defendant, being possessed of "the team of horses, .“willfully, falsely and fraudulently stated and represented said team to be then and there a well matched team, to work together under harness, a true pulling team under harness for wagon and general farm work, not balky, and physically sound, no bad habits, without fault, disorder

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or disease.” The court also found that the plaintiff had relied upon these representations of the defendant, and had been deceived thereby in purchasing said team, and also specifically found that the horses were defective in the particulars set forth in the complaint, and judgment was thereupon rendered in favor of the plaintiff for the rescission of the sale. The appeal is from this judgment, and is presented upon the judgment-roll alone.

The two main contentions of the appellant are: 1. That the complaint is insufficient in the respect that it does not contain an allegation that the representations of the defendant upon which the plaintiff relied were made by the defendant with intent to defraud; and, 2. That the findings do not respond to the issue of fraud presented by the pleadings in the respect that they do not set forth the facts constituting the fraud.