
    William Kiernan, Plaintiff, v. Joseph Rocheleau, impleaded, &c., Defendant.
    1. On a sale of chattels with a warranty of soundness or quality, if the warranty be broken, the vendee is entitled, as damages, to the difference between the actual value of the chattels and the sum they would be worth if they were sound, or of the quality warranted.
    2. The purchaser is not entitled to rescind the sale, return the chattels and demand a return of the price paid, unless there was fraud in the sale on the part of the vendor, or there was an express agreement that they might be returned if they were not such as they were warranted to be.
    3. It is not error to refuse to charge the jury as requested by a defendant, if the evidence would not warrant them in finding the facts without which the instruction requested would have no application to the case, even though, as mere propositions of law, the instructions desired are correct.
    (Before Woodruff and Moncrief, J. J.)
    Heard, January 13th;
    decided, February 18th, 1860.
    This case was brought to hearing' upon exceptions taken by the defendant, Joseph Bocheleau, on a trial had before Oakley, Oh. J., on the 24th day of May, 1853, on which trial the plaintiff recovered a verdict for $200, the exceptions having been ordered to be heard in the first instance at the General Term.
    
      The action was brought against Rochelean as maker, and Louis Demers as indorser, upon a promissory note for $300, payable to the order of the said Louis Demers, and by him indorsed to the plaintiff.
    The defendant Rochelean alone answered the complaint. His defense was, that the note was given to Demers in part payment for a horse purchased from him for the price of $400, whereof $100 was paid in cash: That Demers gave an absolute warranty or guaranty that the horse was free from all unsoundness and was perfect in every respect, and defendant purchased in reliance on such warranty: That the horse was spavined: That Demers knew it, and fraudulently concealed it from the defendant. That on discovering the unsoundness he offered back the horse and demanded the return of the money and note; that in consequence thereof, the consideration of the note has failed and defendant is entitled to rescind the contract; and that the note was transferred to the plaintiff after its maturity and without consideration, the plaintiff having knowledge that there was a defense thereto. The matters set up as a defense were denied by the plaintiff in his reply.
    On the trial the evidence showed that the note in question was given in part payment for a horse, as alleged by the defendant, and that at the time of the sale a small spot or blemish appeared on one of the legs, which was the subject of conversation, and which the said Demers guaranteed was no unsoundness. Whether in fact it had proved to be a spavin, and whether in fact the horse was not perfectly sound, were questions respecting which there was a conflict of testimony. Demers at the time of the sale denied that there was any unsoundness, many of the witnesses fully agreed with him, and there was no testimony that prior to that time there had been anything to indicate that the horse was unsound, except the said small spot or blemish which was the subject of discussion, and in relation to which the witnesses, veterinary surgeons and others differed. There was also conflicting evidence in relation to the difference between the value of the horse if sound and his value with the alleged spavin or unsoundness.
    The evidence showed that the plaintiff received the note after it became due.
    This was the substance of all the proofs given on the trial.
    
      The defendant’s counsel requested the court to charge the jury as follows:
    I. If Demers fraudulently concealed the existence of the unsoundness, or misrepresented it intentionally, the note cannot be enforced.
    II. If there was a warranty against unsoundness, and the jury believe that at the time of sale there was an existing unsoundness interfering substantially with his (the horse’s) use and value, the warranty is broken and the note cannot be recovered.
    III. If the jury believe that the defendant Rochelean found Demers as soon as he could, and tendered him the horse, he was entitled to rescind the contract of purchase, and is therefore absolved from liability upon the note.
    IV. Under any circumstances the real value of the horse is all that Rocheleau is liable for, and crediting him with $100, as paid, the balance is the only amount collectible upon the note.
    As to the first proposition, the Court remarked that there was nothing in the evidence to show fraud; as to the second and third, that they could have no application to the case under the facts, and refused to charge as requested.
    To the refusal of the Court to charge as requested on each and every one of the said propositions, and every part thereof, the defendant’s counsel then and there duly excepted. The Court charged the fourth proposition as requested.
    The jury rendered a verdict for the plaintiff for two hundred dollars; thus allowing to the defendant one hundred dollars, by way of abatement from the note in suit, for the difference between the value of the horse in the condition in which he was when sold and his value if sound, and thus finding or assuming that Demers warranted the horse to be sound and that he was in fact unsound.
    
      J. H. Trapp, for the defendant.
    I. The Court erred in refusing to charge the jury that if Demers fraudulently concealed the existence of the unsoundness, or misrepresented it intentionally, the note could not be enforced.
    There was evidence to warrant the submission of this proposition to the jury.
    
      II. The court erred in refusing to charge the jury that if there was a warranty against unsoundness, and the jury believed that at the time of sale there was an existing unsoundness interfering substantially with the use and value of the horse, the warranty was broken, and the note could not be recovered upon.
    1. There was evidence of a warranty.
    2. There was evidence of an existing unsoundness at the time of warranty, reducing the value of the horse two-thirds.
    III. The Court erred in refusing to charge the jury that if they believed the defendant Rocheleau found Demers as soon as he could, and tendered him the horse, he was entitled to rescind the contract of purchase.
    There was evidence sufficient to go to the jury.
    Demers lived in Canada. Rocheleau called frequently to see Demers, or where he could see him, without seeing him, and did not see him until after the note was due. Demers made no objection about delay. He says nothing, and his subsequent conduct in parting with the note, shows he felt and knew there was a just defense to it.
    The verdict should be set aside and a new trial ordered.
    
      Thomas B. Barnaby, for the plaintiff.
    I. The refusal of the Judge to charge the first of those propositions, as requested, was correct; for there is nothing in the evidence to show fraud.
    1. There is no proof of any unsoundness existing in the horse previous to the sale.
    2. The sale was open and fair, and above-board. Several witnesses present freely discoursed upon the supposed blemishes and defects upon the horse, and carefully examined the swelling which this defendant now calls a spavin. There was no concealment or misrepresentation.
    II. The refusal to charge the second of those propositions was correct.
    • 1. There was no warranty shown to have been given by Demers on this sale.
    
      (a.) There was no bill of sale or written guaranty whatever.
    (b.) The conversation about the time of the sale discloses nothing that amounts to a guaranty, any further, certainly, than that the blemish spoken of was not then a permanent and substantial unsoundness, affecting the value of the horse.
    (c.) The purchase, so far as the evidence shows, was fully ended when this conversation took place.
    2. But even if there were a guaranty in any form, or to any extent, it has not been broken.
    
      (a.) There is no proof that there was any unsoundness at that time, which was not then fully disclosed and embraced in the bargain of sale.
    (b.) The evidence shows, further, that the horse did not depreciate in value at all after the purchase, or certainly no more than would necessarily result from the manner in which he was kept and used by the defendant.
    3. At all events, there is no breach, such as to defeat the recovery, upon the note in question, of the actual value of the horse, less $100, at the time of the sale.
    III. The refusal to charge the third of those propositions was correct.
    1. There is no proof of a proper tender in this case.
    2. No attempt is shown to return the horse within a reasonable time after the sale. Demers was at the place of the sale for six weeks after the horse was sold; and Rocheleau was also frequently there. Yet nothing is said about a return of the horse till late in September.
    3. An offer to return the horse, unless for good cause —for fraud in the sale — would not affect the plaintiff’s rights in any event.
    The plaintiff should have judgment on the verdict.
   By the Court—Moncrief, J.

These exceptions in my opinion might properly and justly be disposed of, by a concurrence in the view expressed at the trial by the learned late Chief Justice; but inasmuch, as it was by his order, that they are heard at the General Term, an examination of the testimony and of the rules of law applicable to the issues in the action has been made.

• As to the first proposition, it will be noticed, that the counsel for the defendant, at the time of making his requests, nor when his attention was directly called to the alleged want of evidence to sustain it, did not specify a portion of the testimony even tending to support it, nor did the counsel, upon the argument, point to any suck evidence. An exception under suck circumstances in fairness or in law will not be upheld. (3 Denio, 598; 3 Kern., 338.)

The proposition assumed some evidence in the case upon which the jury properly might arrive at the conclusion that the seller of the horse, Demers, was guilty of fraud in mating the sale with his guaranty that it was not unsound. There is no such evidence in the case as now presented. Demers positively denied that there was any unsoundness in the horse at the time of sale, and other witnesses agreed with him. The Jury could not be permitted to indulge in speculation and conjecture as to the possibility that Demers knew better or otherwise than as he had testified; there was no evidence to impeach him orto impute other than entire good faith in the transaction.

As to the second and third propositions, it seems to me that the learned counsel, in mating his fourth proposition, conceded the two former to be unsound and untenable.

In Cary v. Gruman, (4 Hill, 625,) it is expressly decided, and I am not aware that the case has been reversed or explained, “ that a warranty on the sale of a chattel is, in legal effect, a promise that the subject of sale corresponds with the warranty in title, soundness or other quality to which it relates; and is always so stated in the declaration when it is technically framed. It naturally follows that if the subject prove defective within the meaning of the warranty, the stipulation can be satisfied in no other way than by making it good. That cannot be done except by paying to the vendee such sum as, together with the cash value of the defective article, shall amount to what it would have been worth if the defect had not existed. There is no right in the vendee to return the article and recover the price paid, unless there be fraud, or an express agreement for a return.” A different rule undoubtedly did prevail at an earlier period, and is commented upon in this case. (Voorhees v. Earl, 2 Hill, 288.)

It was not pretended that there was any agreement for a return of the horse; and there is an entire absence of anything to establish fraud.

Heither of the exceptions being well founded, judgment should be entered for the plaintiff in conformity to the verdict.

Ordered judgment for the plaintiff on the verdict, with his costs.  