Nickley v. Thomas , 22 Barb. 652 ( 1856 )

By the Court, C. L. Allen, P. J.

The only material question in this case is, whether the defendant was guilty of a fraudulent concealment of facts in relation to the defect complained of, so as to render him liable to the plaintiff, in this action. There can be no doubt of the principle that where a vendor of a chattel is guilty of a fraudulent concealment of material' facts in relation to the sale, to the injury of the vendee, an action at law is maintainable to recover damages. (Fleming v. Slocum, 18 John. 403. 1 East, 318. 6 Cowen, 346, 350. 7 Wend. 20.) In Bench v. Sheldon, (14 Barb. 66, 72,) the court say, “In the case of the sale of property the law presumes that the purchaser reposes confidence in the vendor, as to all such defects as are not within the reach of ordinary observation, and therefore it imposes upon the vendor the duty to disclose fully and fairly his knowledge of all defects.” The county judge in this case remarks, that the defendant communicated to the plaintiff all the knowledge that he had about the defect in the horse: that is, he told him the horse had balked with Satterly once, but that he whipped him and made him go. And that was all the evidence of the defendant’s knowledge that he was a balky horse, as he was proved to have worked well and kind while the defendant owned him. It appears to me that the county judge overlooked the circumstance that the defendant did not disclose to the plaintiff the fact that he purchased him as a balky horse, and that his brother and himself had used him carefully, as they would any horse that was balky, during the short time that he owned him, and that Satterly had so used him, before he sold him to the defendant. If these facts had been disclosed they might have prevented the trade, but the defendant would at all events have been exonerated. Merely saying the horse had balked with Satterly once, and that he had made him go, was calculated to mislead and probably did mislead him into the belief that the defect did not really exist, as there had only been this one slight evidence of it. There were some ocher facts connected with the transaction, upon which the jury passed in coming to the conclusion at which they arrived. • I think their verdict was final on this question of fact, and should not have been disturbed. It was certainly not against evidence, as there were some facts on which to predicate it. The defendant told the truth as far as he went, but he did not tell the whole truth. This he should have done, fully and fairly. There was some evidence on which to found the verdict, and it should not be disturbed. (2 Hill, 125. 5 Barb. 283. 6 id. 141.)

[Clinton General Term, September 9, 1856.

The only remaining question for our consideration is, whether the objection to the testimony of the witnesses, as to the damages, was well taken or not. The specific ground of objection was that the witness was not shown to be a competent judge. This was not true in point of fact. It is believed that the legal rule, as heretofore established by abundant cases, was adhered to, and that the evidence was properly received. (23 Wend. 353. 4 Hill, 625. 2 id. 288. 5 Denio, 84.)

The judgment of the county court must be reversed, and that of the. justice affirmed.

C. L. Allen, Paige, James &nd Rosekrans, Justices.]