Toris v. Long, 1 N.C. 17, 1 Tay. 17 (1799)

March 1799 · North Carolina Superior Court

1 N.C. 17, 1 Tay. 17

Toris versus Long.

THE plaintiff’s counsel, stated this to be an action founded, 1st. on an express warranty, 2d. on an implied warranty, 3d. on deceit in a sale.

A full price always implies a warranty. In an action on an implied warranty, the plaintiff need not prove the return of the thing bought.

The material parts of the evidence were, that the plaintiff purchased from the defendant a horse for the price of forty pounds, after he had sent an agent to examine whether the colour and size would serve to match a horse he had; the bargain was completed, upon the agent’s reporting to the plaintiff favourably of the horse’s appearance.

He did however examine and approve the horse himself: at each examination the horse, being taken out of the plough, had on a blind bridle. The witnesses generally thought that forty pounds were the full value of the horse, had he been found; though one witness for the defendant deemed him worth fifty or sixty.

It did not appear distinctly from the evidence, whether forty pounds were the separate price of the horse, or, whether they were paid on account of the horse and a negro, jointly sold for two hundred pounds.

Very soon after the delivery, the plaintiff discovered that the horse was totally blind in one eye, and that the sight of the other was considerably impaired: being about to leave the country himself, he directed his agent to return the horse, and demand the money, which was accordingly attempted; but the defendant refused to receive the horse, unless the negro was likewise returned. About five months before the sale, a film had been cut off the horse’s eye, since which it was testified that the animal appeared altogether free from, any defect in that organ.

Henderson, for the plaintiff.

A found price uniformly implies a warranty of the soundness of the goods sold. Whether the defect were known to the defendant or not, since it existed at the time of sale, he is under a moral obligation to pay the plaintiff the difference; and courts of justice will endeavour to enforce duties of perfect obligation, where no positive rule of society interposes to prevent it. The progress of sound sense, and the prevalence of moral justice over technical subtlety, are strongly marked in the case of Pasley v. Freeman, 3. Term Rep. It is also laid down in 3 Wooddeson 199. “Neither is it incumbent on the plaintiff to prove at the trial that the defendant knew "the things sold to be of such trivial or inferior “worth.” The same author in the 2d. Vol. says “that a fair price implies a warranty, and that a man "is not supposed in the contract of sale, to part “with his money without expecting an adequate "consideration.”

In point of real justice there is no difference, whether a man receives the money of another on a consideration which happens to fail, or upon the sale of property, which proves to be of less value, by means of a defect, than it was sold for; the principle which enables him to recover in the one case applies, with equal strength, to the other.

Duffy, for the defendant.

It does not appear that a full price was paid for the horse; the forty pounds being paid on account of the horse and negro, and if this fact is so found, the foundation of the plaintiff’s argument fails, and consequently the maxim of caveat emptor applies in all its rigour. Were it otherwise, and the forty pounds were really paid for the horse alone, yet, as the plaintiff was as skilful as the defendant, and had twice examined the horse, once by himself, at another time by an agent, it may be presumed that he knew the defect, and that he now repents of his bargain; in every event he was as likely to know it as the defendant. There was not on the part of the defendant the slightest appearance of fraud, for he was willing to rescind the bargain, and would have done so, had the plaintiff thought proper to return the negro as well as the horse. The principles cited from Wooddeson are unsupported by authority.

The Court,

in its charge to the jury, said that the last count upon a deceit was incompatible with the two former, which are founded upon promises and consequently require a different plea. That the antient way of declaring, in this action, was in deceit; which had been changed for the convenience of adding to the declaration a general count for money had and received. As this was not done in the present case, and as the latter count could not consist with the others, it was only necessary to state the points, upon which the jury ought to be satisfied, in order to find a verdict for the plaintiff.

That no part of the evidence applied to the first count of the express warranty; and the second, could only be established by proof that the price, paid for the horse, was a full one, and that he was unsound at the time of sale; except the defect was visible and apparent, so that the plaintiff must have known it.

If these facts are made out to the satisfaction of the jury, the plaintiff is entitled to their verdict; nor is it incumbent upon him to prove, in this form of action, that he returned the horse; for if the contract is established, this circumstance will not change it. It might indeed, have afforded a presumption that he knew the defect, if he had not directed his agent to return the horse; but having done that soon after the sale, it seems likely that he then first discovered it.

A return would be necessary, if the action had been brought for the price of the horse. In such case the plaintiff must shew that the contract is at an end; but where it still continues open, the object of the suit is damages: the proper measure of which is the difference between the price paid, and the horse’s real value.

Verdict for the Plaintiff.