Baskin v. Sprout

Mr. Justice Hydrick.

I dissent, because I do not think the testimony warrants the finding of fraud in the sale, especially in view of the undisputed evidence that two other mills of the same kind and make were then in operation in this State, and had given, and up to the time of the trial were giving, satisfactory results, such as had been promised for the one sold plaintiff. The only evidence upon which the finding of fraud in the sale can be predicated is the mere fact that the mill did not turn out the quantity of meal per hour that defendant’s agent said it would, and that the meal was heated in grinding, so as to impair its market value. I do not think that is enough to justify the finding of fraud in the sale. It would be dangerous to lay down the principle that the mere fact that a machine will not do what the sellei said it would (though he had every reason to believe that it would is sufficient evidence to- sustain a finding that the seller knew, when he sold it, that it would not do what he said, and that, too, when such inference is opposed by undisputed evidence that the same kind of machines were then in operation, and doing just what the seller said they would do.

Mr. Justice Watts. I concur in the views of Mr. Justice Hydrick in his dissent.