Mayer v. Salazar

Belcher, C. C. The plaintiff and defendant exchanged horses, and this action was brought to recover damages for the false and fraudulent representations, alleged to have been made by the defendant, as to the soundness of his horse, whereby the plaintiff was induced to make the exchange.

The court below gave judgment for the plaintiff, from, which, and from an order denying a new trial, the defendant appeals.

The court, after finding that the horse of the defendant was unsound at the time of the exchange, further found as follows:—

“2. That defendant, knowing his said horse was unsound, caused the animal to appear sound, and concealed and suppressed the true condition of the horse, and represented to plaintiff that said horse was sound, and thereby .... induced the plaintiff to exchange his said mare for said horse.

“3. That defendant, with intent to deceive and defraud the plaintiff, and with full knowledge that said horse was unsound and unfit for any use by the plaintiff, did represent, at the time of making said exchange, that said horse was sound; and that plaintiff, relying on defendant’s said representations, did then exchange and deliver his said mare for said horse.”

It is claimed for the appellant that these findings were not justified by the evidence, because there was no sufficient proof that he knew his horse was unsound at the time of the trade; and it is said that in such an [648]action it is necessary for the plaintiff to prove, “not only the falsity of the representations in point of fact, hut that the defendant, at the time the representations were made, had knowledge of their falsity, or made them without reasonable grounds for believing their truth.” The testimony was conflicting upon most of the issues raised, but it was proved for the plaintiff that the horse was spavined and unsound. Dr. Jacobson, a veterinary surgeon, testified that he saw the horse shortly after the exchange, and that “he then had a bone spavin. A horse couldn’t throw out such a spavin in less than three to five or six months. A horse goes lame from the time he gets the hurt that causes the spavin.” And again, in rebuttal, the same witness testified: “I should judge that it would take about three to six months to develop, for such a spavin as was on this horse to develop. The horse must have been lame from the time of getting the injury which caused the spavin to form. The horse might travel during this time without any lameness, but a drive of thirty-five miles wmuld be liable to make him very lame, after standing still for a little time.” And on cross-examination he was asked: “Do all horses go lame that have spavins?” and answered, “Yes, sir.” The plaintiff testified that defendant came to him one day, and said “he had a very fine horse he would like to trade”; that subsequently defendant asked him to go to the stable where the horse was kept and see him; that he went to the stable, and when the horse was brought out of the stall he remarked:" “Well, the horse is a little lame; what is the matter with him?” and defendant replied, “the horse was all right, and perfectly sound, but that he had been out to grass and was rather soft, had been driven fifty miles from the Mission San José the day before, and was a little stiff, but wmuld be over his stiffness in a day or two”; that the witness saw the horse again, when he was still lame, and said: “The horse is lame, what will be done?” and the defendant