Thummel v. Dukes , 82 Mo. App. 53 ( 1899 )

SMITH, P. J.

This is an action commenced before a justice of the peace to recover on a promissory note for $140. It is conceded that the note was given for the purchase price of a mare. The defense was, that at the time of the purchase the plaintiff falsely represented to the defendants that the mare was seven years old, a good work and brood mare, and that she was, in fact, of no value. There was a trial in which defendants had judgment and the plaintiff appealed.

The plaintiff assails the judgment on the ground that the trial court erred in its action in giving an instruction for the defendants which told the jury, that if they believed from the evidence that at the time defendant Dukes purchased said mare, he purchased her for a work animal and a brood mare, and they found from the evidence that she was not a work animal nor brood mare, then on that state of facts, if they found said animal was worthless as a work animal or brood mare, they should find for the defendant. But if they found from the evidence that such representations were not made or that the mare was as represented, they should find for the plaintiff, and assess his damages at the face of the note, with interest thereon at ten per cent from March 4, 1887, with annual rests — that is, compound interest. But if ¡they found from the evidence that the representations as above set forth as to the age, • working qualities or breeding, or any of them were made; that said representations, or any of them, were untrue, and they yet found from the evidence that the mare was of some value; then in that case they should, from the evidence, ascertain the difference in the value of said mare had she been as represented and her value as she was in fact, deduct such difference from the agreed price, $140, and upon that difference calculate interest as above, and find for plaintiff in the sum or amount so ascertained.

It is thus seen that the jury were in effect told that if the mare was worthless as a brood mare or work animal to find for defendants. This was error for she might have been of value for some other purpose. Brown v. Weldon, 27 Mo. App. 251; Hayner v. Churchill, 29 Mo. App. 676; Machine Co. v. Brady, 67 Mo. App. 292. Before 'the defendants were entitled to entirely defeat the recovery it was necessary for them to show that the mare was of no value for any purpose and the jury should have been so directed.

It is true, as has been further seen, that this instruction, in another paragraph thereof, also told the jury that if they found the mare was of some value then to ascertain the difference beitiween that value and her value had she been as represented by plaintiff. These enunciations were manifestly inconsistent and confusing, .and therefore erroneous. Bluedorn v. Railway, 108 Mo. 439; Wood v. Steamboat, 19 Mo. 529; State v. Nauert, 2 Mo. App. 295.

Thé judgment must be reversed and cause remanded.

All concur.