Lawson v. . Baer

The following bill of exceptions is sent up as part of the record:

Smith, a witness for the plaintiff, testified that he was present at the trade. Defendant said she was the Davis mare. Witness asked why was she so poor. Defendant replied, she had been hauling turpentine with mules. Witness thought the mare worth $25 more than the horse which defendant got, if sound. But plaintiff said he knew the mare better than defendant. Nothing further said by either party.

Davis testified that his father raised the mare, who had let him have her; that she was too fast for him, so he had traded her; that defendant told him she was spavined — had a small knot on one of her legs, which (could be) easily seen by any one; slightly lame. Plaintiff lived near his father's, and knew the mare; the trade took place (462) the same day defendant got home. She had been worked with mules in hauling turpentine; that his father took her out of the wagon because she was too fast.

Herring testified to her being slightly lame. The defendant offered no evidence.

The court charged that to entitle the plaintiff to recover, the jury should be satisfied that the mare was spavined, and that the defendant knew of the defect and failed to disclose it, unless the defect was such that a person of ordinary prudence might have discovered it.

The plaintiff's counsel asked the court to add: "unless the defendant, at the time, practiced some art to divert the plaintiff's attention."

The court asked, "Where was the evidence of the defendant's having practiced such art?"

The counsel replied, "That was a question for the jury."

The court replied that "The jury could take it." Defendant excepted.

Verdict for the defendant. Judgment for the defendant, and appeal by the plaintiff to this Court. A patent defect is one that may be discovered by the exercise of ordinary diligence. The mare, in reference to which the action was brought, "had a small knot on one of her legs, which (could be) easily seen by any one, and (was) slightly lame." In the exercise of ordinary diligence, the purchaser of a horse should look at the legs and have the animal moved. So the defect, in this instance, was patent, and the charge of his Honor is supported by Brown v. Gray, 51 N.C. 103, by which the law in regard to patent and latent defects is considered as settled.

The interrogatory put by his Honor, "Where was the evidence of the defendant's having practiced such art?" may be taken as an intimation of an opinion that there was no such evidence, which was a (463) matter proper for him to decide. We concur with him in the opinion that there was no evidence of the fact. So the defendant has no right to complain that, instead of deciding it absolutely, he "let the jury take it"; and as their verdict corresponds with his opinion and that of this Court, it set the matter right. There is

PER CURIAM. No error.