Carey v. Hart , 63 Vt. 424 ( 1891 )

The opinion of the court was delivered by

TYLER, J.

The bill of exceptions presents two questions : First, whether the trial court erred in excluding the interrogatory put by the plaintiff to- the defendant’s witness Clark as to the value of the mare in controversy. The plaintiff had closed his case and had not been prevented from showing the value of the mare. If there was any materiality to the evidence it was a part of the plaintiff’s opening case and the court had aright to exclude it on that ground; besides, it was not in cross-examination of anything that the witness had testified to in chief, and it was within the discretion of the court to exclude it for that reason. It is a wholesome rule, stated in Hughes v. Westmoreland Coal Co., 104 Penn. St. 213, cited by defendant’s counsel, that “ cross-examination must be confined to matters which have been stated in the examination in chief and to such questions as may tend to show bias and intei’est in the witness.” 1 Greenl. Ev. § 445, citing 14 Pet. 461.

The second question is whether the court erred in not instructing the jury that the failure of the defendant to refer to the letter of Snyder, was fraudulent as matter of law. The court could not have directed a verdict for the plaintiff had it been thereto requested because the evidence was conflicting, the plaintiff having' testified that the defendant represented to him that the mare was “ all right every way, except she was slow,” and the defendant having testified that the plaintiff took her without inquiry when he learned that she was thé “ Carty mare.” It was a question of fact for the jury to find whether the defendant was put in a position -where he was bound to disclose all knowledge of the mare’s defects, or whether the plaintiff took her relying upon his own knowledge of her, without inquiry.

The letter apprised the defendant that while Snyder owned the mare she had a “ difficulty ” with her head, but the defendant testified that during the ten days he had owned her he had fed her well, driven her from twenty to thirty miles daily and 'had not seen or known of any trouble with her. From his use and observation of her he may have believed that she had recovered from the difficulty she had when in the hands of her former owner. He might rely upon his own knowledge as well as upon what the letter stated. Therefore, it was properly submitted to the jury to decide whether the defendant knew or had reason to suppose that the mare was unsound at the time of the exchange with the plaintiff. The letter was evidence to be considered with the other evidence in the ease.

The court carefully called the attention of the jury to the respective claims of the parties, read the Snyder letter to them, and among other things charged that “ if, at the time this contract was made, the defendant stated any material fact about the horse to be different from what he knew it to have been at that time, that is, if he stated falsely about any of the characteristics or qualities of the horse, that would have been fraudulent. Or, if he stated that he knew of no defect when in fact he did, or concealed any defect in the horse from the plaintiff at that time, that would be such a fraud as wrould entitle the plaintiff to rescind the contract.” * * * * “Now in making a trade, a man may say nothing about the character or qualities of the property that he is selling, but if he is asked with reference to it and he undertakes to tell, he must then disclose fully and freely what he does know about it. If he states the facts falsely or misrepresents them or fraudulently conceals the facts that he knows with reference to it, when he is inquired of with reference to the soundness or unsoundness of the property, then he is guilty of fraud as I have stated to you.”

It was also explained that the plaintiff must have been induced to make the contract by the defendant’s false 'representation or suppression of facts.

Having correctly stated the law of the case, we think the court properly submitted it to the jury to find, as a -question of fact, whether there was- fraudulent concealment or not.

Judgment affirmed.