Merguire v. O'Donnell

Searls, C. This is an action to recover damages for deceit and fraudulent representations in the sale by defendant to plaintiff of three horses. Plaintiff had judgment for $650, from which judgment, and from an order denying a motion for a new trial, defendant appeals.

About the 1st of June, 1890, plaintiff purchased from the defendant, at East Oakland, three horses for $400, paying $100 down and the residue to be paid the following day upon delivery of the horses in San Francisco. Defendant called upon plaintiff the following morning, in advance of the arrival of the horses, and received the residue of the purchase price. Almost immediately upon the arrival of the horses, and within an hour, they were found to be ailing and discharging from the nose. The disease with which they were [51]afflicted proved to be glanders. One of them was con- ' demned by the public authorities, and killed in a short time, and the others shared the same fate a few months later.

Plaintiff, after the death of the first horse, offered to return the others, and demanded a rescission of the contract and return of his money, which was refused by the defendant.

The complaint charged defendant with falsely and fraudulently representing to plaintiff that the horses were well and sound; that the plaintiff believed these statements to be true; and, relying upon them, was induced to purchase, and that defendant well knew the statement to" be false, etc.

The cause was tried by a jury, and the main controversy was as to these representations and knowledge by defendant of the condition of the animals. There was testimony, on the part of plaintiff, tending to show that defendant knew the condition of the horses, instructed his employee to keep their noses clean when plaintiff and his brother came to examine them, which was done; and that he represented to plaintiff that “ they were all sound, except one horse, who had a blind eye”; and at another time during the negotiation, when asked if there was any thing the matter with them (the horses), he said: “No, except that one had a defect in the eye.”

On the other hand, there was a denial of all these representations by defendant, and of all knowledge on his part of any ailment or disease in the horses.

A number of other witnesses, on the part of defendant, testified that the horses showed no signs of glanders up to the time of sale. In the face of this conflict of evidence, we must regard the verdict of the jury as conclusive upon the facts. The jury rendered a verdict in favor of plaintiff for $650. This, it is claimed by appellant, was excessive.