Porter v. Leyhe

Gill, J.

This is a suit in replevin, for the possession of a horse. It originated before a justice, was taken by appeal to the circuit court, and in both plaintiff was successful and defendant appealed.

The controversy grew out of a horse trade made between plaintiff Porter and defendant Leyhe. Accord*542ing to the testimony of a number of witnesses, intimately acquainted with plaintiff Porter and well qualified to give an opinion, Porter is and was a half-witted, weak-minded young man living in the vicinity of the defendant. And there was evidence tending to prove that defendant took advantage of plaintiff’s mental condition and deceived and overreached him in the exchange of horses. Plaintiff gave the horse, for the recovery of which this suit was brought, for that of defendant, and received $10 “boot.” The evidence tends further to prove that defendant fraudulently and knowingly misrepresented the quality of his horse and thereby induced the plaintiff to believe that said horse was sound and all right; whereas, in truth, the animal was not sound, but almost worthless. That by reason of these fraudulent practices, plaintiff was induced to make the trade. That within a few hours after the trade was completed, the plaintiff, on being properly advised by his friends that he had been imposed on, returned to defendant and made a tender back of the unsound horse and $10 received from the defendant, and demanded a rescission and return of the horse he had turned over to defendant. This all occurred Saturday afternoon. On the Monday morning following, plaintiff went again to defendant, made the same offer to re-, turn the horse and $10 and demanded the animal he had traded to defendant, but the latter again refused, and this suit was then begun.

After a careful examination of the record in this case, as we find it set out in defendant’s abstract, we do not feel willing to disturb the judgment. During the pendency of the negotiations for the trade, it seems that defendant had a talk wjth one Drummond, with whom plaintiff resided, and who, as suggested, might be called a quasi guardian of the young man; and in that conversation Drummond testified that defend*543ant told Mm that he and “Erate” were negotiating, and over the objection of defendant’s counsel, Drummond was permitted to testify that defendant assured him (Drummond) that the horse was a “nice black horse and will sell on the market better than Erate’s; he is sound and all right,” etc. The objection now is that this evidence was incompetent, irrelevant, and was calculated to prejudice the defendant’s cause. Ordinarily this would be true, and the plaintiff would not be allowed to make a case of false and fraudulent representations by showing that representations of the character alleged to have been made to the plaintiff were made to others. But under the circumstances of this case we think it was not improper to admit this evidence. A question of fraud was being investigated, and the law permits a pretty wide latitude in showing up the circumstances. Drummond, it was known, was the party with whom young Porter resided, and he was evidently considered a kind of guardian to the latter. This talk, then, which defendant had with Drummond, was probably intended to aid in cheating plaintiff out of his horse. The assurance uttered by defendant to Drummond that it was a nice horse and free from fault- or blemish was calculated to quiet the latter and prevent his interference. But even if technically erroneous, we do not think the error' was serious enough to warrant us in reversing the judgment.

The criticisms on instructions given are without merit. Taken as a whole, they were quite favorable to the defendant. This is not an action on a warranty, but is rather a suit in replevin based on a rescission of a contract of sale or exchange. If the defendant, by false and fraudulent representations, induced this ignorant young man to part with his horse; and if the plaintiff immediately on discovering that he had been cheated and defrauded, went to defendant and tendered *544back all that he had received and demanded a return of his horse, this constituted a rescission of the contract and the parties then stood as if no trade had ever been made. This was, in effect, the tenor of the instructions given and they were correct. The tender, as proved, was all the law requires. Plaintiff could do no more than take the horse and money he had obtained from defendant and offer to surrender them, which he did. It is true that the defendant refused to receive back the horse or his money, but such refusal can not operate to lessen or destroy the legal effect of the tender. Nor is there anything in all the evidence supporting the claim that the plaintiff abandoned or waived his right to rescind. At all events this feature of the defense was fairly submitted to the jury by defendant’s eighth instruction, as modified by the court.

The judgment of the circuit court will be affirmed.

All concur.