#### J. B. HODGES v. R. L. SMITH.

(Filed 21 February, 1912.)

Vendor and Vendee — Deceit—False Warranty — Evidence—Damages —Questions for Jury.

In an action for damages for personal injuries caused by defendant’s deceit and false warranty in the sale of a horse, there was evidence tending to show that the defendant falsely represented that the horse was kind and gentle, and that plaintiff, relying thereon, bought the horse, drove him twenty-five miles to his home, and a few days thereafter, while driving him to a buggy, the horse began to kick and back and threw plaintiff out of the buggy and broke his leg: Held, a question for the jury as to whether defendant intended his statement as to the character *257of the horse to be a warranty, and whether the plaintiff, relying thereon, was thereby induced to buy, and whether, under the evidence, there was deceit and a breach of warranty on defendant’s, part.

Appeal from Olme, Jv at October Term, 1931, of Beaufobt.

This action was brought to recover damages for deceit and false warranty in the sale of a horse. In his answer the defendant describes himself as “a regular horse and mule dealer, conducting a sales-stable at Greenville, N. 0.” The following is the plaintiff’s version of the facts, as given in his testimony: “I live in Beaufort County, and am a farmer and house carpenter. I know R. L. Smith, the defendant. I went to his stables in December, 1907. He has a large stable at Greenville. I saw Mr. Savage before I saw Mr. Smith. Savage was working with Smith. I told Mr. Savage that I wanted a horse, one that my father and mother could drive and that is gentle and all right. I told him that I had never bought a horse before. He showed me the horse in question and told me that he was all right. He priced the horse at $185 cash. I then saw Mr. Smith and told him about the conversation with Savage. He said he had a horse to sell; that was what he was there for. He said the horse was all right. I told Mr. Smith that I did not know anything about horses; that I wanted a quiet, gentle horse. He said that this one was a quiet, gentle horse; that any lady could drive him. I had Mr. Savage to look at my horse, and we traded. I gave $145 to boot, by mortgage on the horse traded for. Mr. Smith had the horse hitched to a break cart and driven a short distance in the stable. He said he had no buggy, but would hitch him to a cart. My brother was with me at the time. I had no experience in buying horses. I told Mr. Smith that I wanted a quiet, gentle horse that my father and mother could drive. He said this was a gentle horse that any lady could drive. I relied on what he said and did not know,' except from what he said, whether the horse was gentle or not. After the_ trade was made, Mr. Smith had the horse hooked up and I drove him home, a distance of about twenty-five miles. The next day after that, I hitched the horse up again. Bum "Whitaker was with me. We hitched him to a good buggy with a good harness, and drove him about two miles. *258The next day Wbitaker and I booked him up and drove him 125 yards, when he began to run and kick and threw me out of the buggy, breaking my leg. Whitaker stopped the horse by pulling him into a fence. I was laid up nearly all the year. I was in bed six weeks, flat of my back. I was then up and down until October or November. The doctor attended me nearly the whole time. My leg was dislocated and' broken together. I was disabled the entire year, and it affects me yet. After I got hurt, John Hodges worked the horse for me beside an old team and broke him for me, and I drove him that fall. The horse was not worth anything to me. I reckon he was worth $150 or $175 on the market. I saw the horse after I got hurt. That fall I wrote Mr. Smith a letter, in November, 1908, and told him I could not pay for the horse and the interest on the mortgage, and to send for him, which he did. Before I was hurt I could, do a man’s work. At the time of the injury the horse was in the main public road near my house, and threw me out of the buggy. My doctor’s bill was $100. I had to hire a man to work at 50 cents per day and board at 25 cents per day. The horse I traded to Smith was worth $50. I lost him and lost my crop that year. My time was worth $1 per day. I have not been able to do a good day’s work since. Was about 24 years old when I made this trade..”

At the close of the testimony for the plaintiff, the court, on 4 motion of the defendant, entered a judgment as of nonsuit, and the plaintiff appealed.

Small, McLean & McMullan for plaintiff.

F. G. James ■<& Son for defendant.

WalkeR, J.

The defendant, in his answer, denies the plaintiff’s allegations, the substance of which have been set out, and avers that he had recently bought the horse when he sold him to the plaintiff, and not knowing his qualities, he could not have warranted or represented that he was kind and gentle in harness, but told the plaintiff that the person .who sold the horse to him represented him to be sound and safe, and he only expressed an opinion to the plaintiff, based upon such knowledge as he had thus acquired, that the.horse would suit him, and that he *259made no warranty and practiced no deceit. Tbe issue thus raised by the pleadings was not submitted to the jury and the defendant offered no testimony, so that the case must be considered solely upon the evidence of the plaintiff.

~W& think the judge erred in ordering a nonsuit. The question involved in this case has frequently been decided by this Court against the contention of the defendant. As early as 1805, in Thompson v. Tate, 5 N. C., 97, it was held that a vendor of goods is liable, on an express or implied warranty, for affirming, at the time of the sale, that they possess a particular quality which would increase their value, if it turns out that the affirmation is not true, although he did not know such affirmation to be false, and with reference to this principle the Court said: “Upon this question there can be no doubt; the vendor is clearly liable.” This must be read in the light of subsequent decisions.

In Inge v. Bond, 10 N. C., 101, Chief Justice Taylor drew the distinction between an affirmation as to the title of goods, where the law implies a warranty and the affirmation binds the vendor, and an affirmation as to their soundness, which will not amount to a warranty, unless it appears on the evidence to have been so intended. This is but the statement of the general rule that in order to make a contract the minds of the parties must agree upon the same thing, the intention or belief of one only not being sufficient for the. purpose. The intention of both must be the same. It is for the jury to find what the intention was from the language used and the circumstances of the case. The law was stated by Chief Justice Nash, in Foggart v. Blackweller, 26 N. C., 238, to be well settled, by numerous adjudications, “that there is no word of set form of words required to constitute a warranty in the.sale of personal property, but wherever the words used, taken in connection with the attendant circumstances, show that it was a part of the contract with the parties that there should be a warranty, they will suffice. 4 Ad. & E., 473, 31st vol. Com. L. Rep., Pwon v. Barkham; 5 B. & A., 240, 7 vol. C. L. R., Shepherd v. Kain; 2 Nev. & Mann., 446, 28 vol. C. L. R., Freeman v. Baker. These authorities show that every affirmation, made at the time of the sale of personals, *260is a warranty, provided it appears to bave been so intended by tbe parties. A bare affirmation, merely expressive of tbe judgment or opinion of tbe vendor, will not amount to a warranty; and tbe reason is, a warranty subjects tbe vendor to all losses arising from its failure, however innocent be may be, and tbis responsibility tbe law will not throw upon him by implication, except as to tbe title of tbe property. As it respects tbe value or soundness of tbe article sold, tbe law implies no warranty. Tbe leading case in tbis State upon tbe subject of tbe warranty of personals is that of Erwin v. Maxwell, 3 Murph. (7 N. C.), 241. In that case tbe plaintiff asked tbe defendant if tbe horse be was about to let him bave was sound, to which tbe latter answered that be was. His Honor, QMef Justice Taylor, in discussing tbe subject, says: 'To make an affirmation at tbe time of tbe sale a warranty, it must appear by evidence to be so intended, and not to have been a mere matter of judgment or opinion.’ In tbe case of Ayres v. Parks, 3 Hawks (10 N. C.), 59, tbe Court says: 'An affirmation at tbe time of tbe sale is a warranty, provided it appears in evidence to bave been so intended. "Whether it was so intended is a matter of fact to be left to tbe jury.’ Tbe last case on tbis subject is that of Baum v. Stevens, 2 Ired. (24 N. C.), 411. In its leading features it strongly resembles tbis.”

It was stated in Baum v. Stevens that tbe true doctrine was established in Erwin v. Maxwell. Tbe cases are collected in McKinnon v. McIntosh, 98 N. C., 89, and tbe rule is thus deduced from them and tbe other authorities: “The defendant bad a right to bave the question whether tbe force and effect of tbe affirmations of tbe plaintiff in regard to tbe quality of tbe fertilizer did not constitute a warranty of tbe quality. If tbe vendor represents an article as possessing a value which upon proof it does not possess, be is liable as on a warranty, express or implied, although be may not bave known such an affirmation to be false, if such’representation was intended, not as a mere expression of opinion, but tbe positive assertion of a fact upon, which tbe purchaser acts; and tbis is a question for tbe jury. Thompson v. Tate, 5 N. C., 97; Inge v. Bond, 10 N. C., 101; Foggart v. Blackweller, 26 N. C., 238; Bell v. *261 Jeffreys, 35 N. C., 356; Henson v. King, 48 N. C., 419; Lewis v. Rountree, 78 N. C., 323; Baum v. Stevens, 24 N. C., 411.” See, also, Henson v. King, 48 N. C., 419; Lewis v. Rountree, 78 N. C., 323. Tbe question was presented in Horton v. Green, 66 N. C., 596, and tbe Court said tbat “a representation simply of soundness does not import absolutely a stipulation of tbe existence of tbat quality, but a representation may be made in sucb terms and under sucb circumstances as to denote tbat it was not intended merely as a representation, but tbat it entered into tbe bargain itself. In Ayres v. Parks, 10 N. C., 59, Hall, J., says: ‘Whether an affirmation at tbe time of sale was intended as a warranty is a matter of fact to be left to tbe judge.’ ‘Of necessity, in verbal contracts,’ says Chief Justice Ruffin, ‘greater latitude must be allowed to evidence to establish tbe words and tbe meaning of parties. Tbe evidence may consist of everything which tends to establish tbat tbe vendor meant to convey tbe impression tbat be was binding himself for tbe soundness of tbe article and tbat tbe vendee relied on what was passing as a stipulation.’ Among these circumstances, even tbe tones, looks, gestures, and tbe whole manner of tbe transaction, with all surroundings, would be competent evidence for tbe jury to consider in making up their verdict. Tbe doctrine upon special contracts of personalty, and whether tbe question of warranty is to be decided by tbe court or left to. tbe jury with proper instructions, has been too long and too thoroughly settled in our State to be-now overturned by decisions in other courts. We adhere to tbe decisions of our own Court upon these questions.” Tbat case was approved in Beasley v. Surles, 140 N. C., 605, and tbe following language of Chief Justice Ruffin, in Baum v. Stevens, supra, was adopted: “It is certain that warrant is not an indispensable term in contracts respecting personalty, as it is in conveyances of freehold. It is also true tbat a representation simply of soundness does not import absolutely a stipulation of tbe existence of tbat quality. But tbe representation may be made in sucb terms and under sucb circumstances as to denote tbat it was not intended merely as a representation, but tbat it entered into tbe bargain itself. . . . Tbe evidence may consist of everything which tends to establish tbat tbe *262vendor meant to convey the impression that he was binding himself for the. soundness of the article, and that the vendee relied on what was passing as a stipulation. Among these circumstances would, of course, be the understanding, at the time, of the bystanders who. witnessed the transaction, and the facts on which the impressions of these persons were founded.” After further discussion, he concludes: “These, we think, were all matters properly belonging to the jury, to whom they should have been submitted, with instructions that, if they collected therefrom that the defendant did not merely mean to express an opinion, but to assert positively that the negro was sound, and that bidders should, upon the faith of that assertion, bid for the negro as sound, then it would amount to a warranty; otherwise not.” The same principle was stated and applied in Wrenn v. Morgan, 148 N. C., 101, and Harris v. Cannady, 149 N. C., 81, with a full citation of the cases in this Court, and the rule was thus formulated by Justice Hoke: “It is accepted law that to hold a bargainor in a sale responsible for a warranty, it is not necessary that this should be given in express terms, but that an affirmation of a material fact, made by a seller at the time of the sale and as an inducement thereto and accepted and relied on by the buyer, will amount to a warranty. Tiffany on Sales, 162.” We find in Tiffany on Sales, at p. 162, a statement of .the rule apparently corresponding with that adopted by this Court: “No form of words is necessary to create a warranty. Whether the words amount to • a warranty is a question of the intention of the parties. The affirmation of a fact made by the'seller as an inducement to the sale, if the buyer relies upon it, will amount to a warranty. A statement of opinion or a mere commendatory expression will not. Whether a statement is an affirmation of fact, or whether it is simply a statement of opinion or a commendatory expression, often depends on the nature of the sale and the circumstances of the case.”

Applying the principle as thus gathered from the authorities, the court erred in not submitting the case to the jury to find the facts and to pass upon the question of warranty. The language of the parties, as used at the time of the transaction, is *263quite as strong to show a warranty as any to be found in tbe cases we have cited. Tbe defendant was a dealer in horses, and by tbe testimony as we now bave it, be, at least, affirmed tbat tbe borse be sold to tbe plaintiff was of tbe description be wanted — kind and gentle in harness, and so well-broken tbat even a lady could drive bim witb safety. Tbe plaintiff says tbat be relied upon tbat representation and bought tbe borse believing it to be true, and being induced thereby to buy. Tbe jury must decide whether it was intended and accepted as a warranty, and also, upon tbe evidence, whether there has been a breach thereof, there being evidence of a breach for them to consider.

We bave so recently discussed tbe law in regard to tbe question as to the deceit tbat it will be sufficient merely to refer to tbe case. Whitmire v. Heath, 155 N. C., 304. We bave also recently considered very fully all the questions now presented, deceit and warranty, in Robertson v. Halton, 156 N. C., 215. See, also, Unitype Co. v. Ashcraft, 155 N. C., 63. Tbe case of Allen v. Truesdale, 135 Mass., 75, is much like this one. It was there held tbat if a person buys a borse, in reliance upon a false representation by tbe seller tbat tbe borse is safe and not afraid of tbe cars, and is injured by reason of tbe borse being frightened by tbe cars and running, be may maintain an action against tbe seller for such injuries; and tbe facts tbat tbe accident did not occur until five weeks after tbe sale, during which time, tbe borse bad been driven safely on several occasions, and tbat tbe borse, after being frightened, ran three-fourths of a mile, and then turned from tbe highway towards a place where it had been accustomed to stand, and in doing so overturned tbe vehicle in which tbe buyer was riding, are not, as matter of law, conclusive tbat tbe vice of tbe borse did not cause tbe injury, but are for tbe jury, citing Langridge v. Levy, 2 Mees. & Wils. (Exch.), 519. More to tbe point, upon facts somewhat similar to those in this case, is Smith v. Green, L. R. (1875-6), 1 C. P. Div., 92.

Tbe question of damages is also discussed in Robertson v. Holton, supra.

Tbe nonsuit is set aside and a new trial ordered.

New trial.