Stever v. Lamoure — 1 Hill & Den. 352

Majority

p. 352

Stever vs. Lamoure.

Headnote

A breach of warranty or fraud in a sale will not be received in recoupment of damages, unless a proper notice of the defence is given,^[1]

A notice that the plaintiff represented a horse “ to be true, gentle, orderly and sound, when in truth and in fact said horse was untrue, disorderly and unsound, and was much older than represented,” and saying nothing as to plaintiff’s knowledge of the falsity of his representations, was held defective.^[2]

A chattel note is admissible in evidence under the money counts.

Action op Assumpsit tried at the Otsego Circuit, April, 1843, before Gridley, 0. judge. The declaration contains

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themoney counts, and one for goods, wares and merchandise, &c., and one on a special agreement as follows to wit, “ Wor

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cester, April 28th, 1842. “ Two months after date I promise to deliver to Adoniram Stever, a good new lumber waggon with box and finished in a workmanlike manner for sixty dollars payable at D. D. Sheldon’s store for value received. Isaac Lamoure,” and that the consideration for it was a certain bay mare sold and delivered to defendant by plaintiff. The defendant pleaded the general issue with a notice of a breach of contract in the sale of a certain horse mentioned in the declaration, in this, that'the said horse was represented to be true, gentle, orderly and sound, when in truth and in fact said horse was untrue, disorderly, and unsound and much older than represented, which by way of recoupment will be given in evidence against plaintiff’s claim, &c. The agreement was given in evidence, and the consideration for it proved to have been an order for lumber amounting to $5.00, a note of $3.00, and the mare, valued at $52.00. The defendant offered to prove the matters set up in the notice, but the evidence was excluded on the ground of the insufficiency of the notice. The defendant excepted. Verdict for plaintiff, and defendant moves for a new trial on a case made.

Jl. Becker, for defendant.

1. The onus probandi lay upon the plaintiff to show the value of such a waggon as was described in the written instrument at the time and place it was to be delivered, and he not having proved it, the judge erred in not nonsuiting the plaintiff. 2. A demand should have been proved by the plaintiff of the defendant at the time and place named in the writing. 3. The consideration avered in the declaration for the written instrument was one horse sold and delivered, whereas the proof showed two considerations, a mare sold and delivered and a note for hemlock boards, and therefore the judge erred in not nonsuiting the plaintiff on the ground of variance. 4. The judge erred in not permitting the defendant to prove fraud in the sale of the mare under the general issue, inasmuch as the fraud offered to be proved went to show she killed herself and was therefore of no

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value. 5. The notice was ample and sufficient to authorize proof of a breach of warranty by way of recoupment.

(S'. (S'. Burnside, for plaintiff".

1. The circuit judge decided correctly in refusing to non-suit the plaintiff upon the several grounds taken by the defendant’s counsel. The first ground is that the instrument offered and read in evidence was not precisely such an instrument as the one set out in plaintiff’s declaration. The instrument read in evidence was substantially the same, and precisely the same instrument as the original pleadings in the cause now handed to the court will show. See 1 Hill, 519 . 2. That the sum specified in the contract was the sum the defendant agreed to pay on condition that the waggon was not delivered pursuant to said contract. 5 Wend., 393 ; 4 Hill, 164 . 3. The instrument was a note payable in a specific article and admissible under the common money counts in the declaration set forth. See Smith v. Smith, 2 Johns., 235 ; Pierce v. Crofts, 12 Johns., 90 ; 7 Wend., 311 . 4. The plaintiff was not bound to prove that the note had been presented and the waggon called for at the store of D. D. Sheldon. The defendant was bound to prove that a waggon answering the one described in the note was delivered on the day it became due. See Slingerland v. Morse, 8 Johns., 370 ; Borns v. Grahams, 4 Cowen, 452; 13 Wend., 95 ; 1 Hill, 519 ; 5 Wend., 393 . 5. The judge at the circuit decided correctly in sustaining the objection made by plaintiff’s counsel to the evidence offered by defendant of the mare being lame, untrue, &c. The notice under the general issue was insufficient to authorize the proof. 1st. Because it does not set forth that the horse was the consideration of the note. 2d. That it alleges that the plaintiff represented the horse to be true, &c., when the only witness who was present at the time of the sale expressly swears, that the plaintiff said he did not know much about the mare. Assuming that no warrantee was proved, the offer of the defendant was clearly inadmissible. 3d. That no notice of a fraud was given in the pleadings. A notice should contain all the requisites

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of a special plea, and a partial failure of consideration can not be given in evidence under the general issue, but must be pleaded or notice given. See 21 Wend., 626 ; 3 id., 236. 6. The facts were fairly submitted to the jury by his Honor the judge and they have found that the defendant did not deli,ver such a waggon as is described in the contract, and it being a question of fact, this court will not disturb the . verdict.

By the Court,

The agreement given in evidence was, what is called a chattel note, and was admissible in evidence under the money count in the declaration. (Crandal v. Bradley, 7 Wend., 311 .) The objection that it varied from the instrument set out in the special count was therefore properly overruled.

It was unnecessary for the plaintiff to give evidence of . the value of such a waggon as is described in the note. The defendant promised it should be a good, new, lumber waggon, in all- respects complete; and the price is stated at sixty dollars. It was paid for in advance, and if the defendant failed to deliver the waggon as agreed, the plaintiff was entitled to recover the sixty dollars. (Rockwell v. Rockwell, 4 Hill, 164 ; Pinney v. Gleason, 5 Wend., 393 .)

There was nothing in the case which called for proof, in the first instance, of any consideration for the note, beyond what is expressed on its face. It purports to be given for value received, and, although the special count in the declaration alleges that the consideration was a bay mare, and the testimony shows it to have been the mare and an order and a note, still this variance was of no consequence. The note was in evidence under the money count, and properly so, and that disposes of every thing connected with the question of variance.

This agreement was to pay sixty dollars in a waggon at a certain time and place, and no demand on the part of the plaintiff was necessary to entitle him to bring suit. If the waggon was ready at the time and place, that was matter of defence to be proved by the defendant.

It was prov.ed that the mare sold by the plaintiff to the

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defendant was part of the consideration of this note, and on the trial the defendant offered to show that the plaintiff “ warranted her to be true, gentle, orderly and sound, when in truth and in fact the said mare at the time was untrue, disorderly and unsound.” The defendant also offered to . prove fraud on the part of the plaintiff in the sale of said mare. On objection by the plaintiff’s counsel the testimony was excluded by the judge, on the ground, as is stated in the case, that the notice of defence was insufficient to authorize the evidence to be given, as the mare was of considerable value notwithstanding the alleged defects.

It was not pretended that the defendant had returned the mare to the plaintiff, or offered to return her, on the discovery of the alleged fraud, or that she was at the time of the trade, of no value whatever. The testimony was therefore admissible, if at all, to reduce the amount which the plaintiff would otherwise recover and not in bar of the action. But neither a breach of warranty or fraud in the sale can be shown for such a purpose, unless a proper notice of the defence is given. This point has been questioned but should be regarded as settled in this court. (Barber v. Rose, 5 Hill, 76 .) As the testimony was rejected on the ground that the notice was defective, the only question, on this part of the case, is as to the sufficiency of thé notice. It sets up a breach of contract in the sale of the mare, in this, to wit, the plaintiff represented her “ to be true, gentle, orderly and sound, when in truth and in fact ” she was “ untrue, disorderly and unsound, and much older than represented.” Nothing is said of any fraud in the sale, or, in terms, of a warranty, for a representation is not, necessarily, a warranty; nor is it suggested in the notice, that the plaintiff was aware that his representation was in any respect untrue. The notice, therefore, is wholly defective; it sets up neither fraud or breach of warranty, and the judge was correct in excluding the testimony offered under it.

The motion for a new trial should be denied.