Deceit — Evidence. The plaintiff alleged, in his declaration, that on the 25th of May, 1874, he delivered to the defendant his mare and seventy-five dollars in money, in exchange for the defendant's horse then delivered by him to the plaintiff; that afterwards, in consequence of certain false and fraudulent representations in regard to the health or condition and *Page 626 behavior of the mare, made by the defendant to the plaintiff, and which the defendant at the time of making them knew to be false and fraudulent, the plaintiff was induced to pay, and did pay, to the defendant the sum of forty dollars in settlement of the claim which the defendant thus pretended to have against the plaintiff. The question for the jury was, whether the defendant made such representations, and if so, whether they were true or false. The defendant admitted that the plaintiff paid him the sum of forty dollars as alleged, but claimed it was in settlement for the deceit practised by the plaintiff in trading him an unsound mare at the time the parties exchanged horses.
The report of the case shows that the evidence introduced by the plaintiff tended to prove the matters alleged in the declaration, and that the evidence introduced by the defendant denied that the statements contained in the declaration were ever made, and tended to contradict the evidence on the part of the plaintiff. It was certainly competent for the defendant to satisfy the jury, if he could, that the forty dollars was paid to him to settle for the deceit practised upon him by the plaintiff in the exchange of horses, and it was of course incumbent on him to show that there was such deceit practised upon him; and how else could he show it, except by showing what that contract was? The defendant very forcibly says, in his brief, "there was no other way to prove it." If, at the time of the exchange, the plaintiff knowingly made false representations to the defendant in regard to the soundness of his mare, in consequence of which the defendant was induced to make the exchange, and subsequently, upon discovering the deception, the defendant made a claim upon the plaintiff therefor, which the plaintiff chose to settle by the payment of forty dollars, I can conceive of no ground upon which such testimony could be excluded. To confine the defendant to the introduction of evidence negativing the allegations in the declaration, would leave him with forty dollars of the plaintiff's money in his hands without the opportunity of explaining for what purpose it was paid to him. Indeed, the plaintiff's counsel, in their argument, concede that the defendant must prevail, if he can show that the forty dollars was paid, not in consequence of the misrepresentations set out in the writ, but in settlement of another matter between the parties. The case finds that the defendant offered to prove what the contract was between the parties at the time of the exchange, in order that it might appear whether he acted in good faith in his representations when he obtained the forty dollars, and also to ascertain whether the horse was subject to fits or dizzy spells. From this, I understand the defendant claimed, that, if he was permitted to show what the original contract was, it would appear that at the time of the exchange the mare was unsound, and that in the trade that fact was fraudulently concealed from him by the plaintiff; and that upon showing this, with the other evidence as to what took place between the parties when the forty dollars was paid to him, he would be entitled to claim a verdict from the jury. The plaintiff's counsel say "the court did not reject evidence to show that this money was paid on any other *Page 627 account than that stated in the declaration; but they did reject evidence tending to establish another wrong than the one described in the declaration, and which had no direct bearing upon the issue to be tried." If the money was paid on any other account than that stated in the declaration, it would most likely be for some wrong which the defendant had suffered, or claimed to have suffered, from the plaintiff, and which the defendant ought to have been permitted to show. If the defendant had merely undertaken to deny that the representations made by him to the plaintiff, June 10, 1874, were untrue, or, if the only question had been, whether he made any such representations as the plaintiff alleged, it would then be wholly immaterial what the contract between the parties at the time of the exchange of horses was; but the defendant's position covered not only a denial of the allegations of the plaintiff (except the payment of the forty dollars), but also included the claim that this sum was paid to him for a wrong received by him from the plaintiff at the time of the exchange; and it seems to me too clear for argument that the exclusion of the testimony he offered as to what that original contract was, deprived him of the only means he had of showing that the money was paid to him for the reason he claims it was, or, in other words, prevented his making the defence which it is admitted he had a right to make.
The offer to prove that a horse subject to fits or dizzy spells, is unsound, and that the horse in question had been subject to such fits for three years, and that the plaintiff knew it, was competent, as bearing on the question of deceit, in whatever representations the plaintiff made in that respect at the time of the exchange.
The defendant's statements made on the day be received the forty dollars, not in the presence or hearing of the plaintiff, were admissible, as tending to contradict him. They would not, however, be admissible upon any other ground, because, not being made in the presence of the plaintiff, he was not thereby induced to pay out his money.
The defendant's request that a verdict should be ordered for him was properly denied. The instructions given to the jury were correct, and cover the whole ground; and if the allegations in the declaration are proved to their satisfaction, the plaintiff is entitled to recover. But for error in excluding, testimony offered by the defendant, the verdict must be aside.