#### JAMES F. PEARCE *vs.*JAMES L. BLACKWELL.

Where a vendee takes an article at his own risk or with all faults, he becomes his own insurer, and the seller is relieved from all obligation to disclose any fault he may know the article has; but he must resort to no trick or contrivance to conceal the defect or mislead tho purchaser.

The case of *Smith*v *Andrews,*8 Ire. f>, cited and approved.

Appeal from the Superior Court of Law of Rockingham County, at the Spring Term, 1851, his Honor Judge Bailey presiding.

This is an action on the case for deceit and false warranty in the sale of horses.

*William B. Grant,*a witness for the plaintiff,

testified, that the plaintiff, a resident of Guilford county, came to his tavern, in Statesville, at the Superior Court, in April, 1848: that the defendant, Blackwell, put up at his house with hi3 two horses, on Tuesday of Court, and told him he wished to sell his horses: that he learned from the plaintiff, that hp *50wished to buy: that on that day or the next, the parties came before him, and told him that they had swapped houses : that the plaintiff had received of the defendant, Blackwell, two horses, and the defendant, Blackwell, had received of the plaintiff one horse and one hundred dollars in money: that he counted the money at their request, a part of which the plaintiff borrowed of the witness, blunt: that he heard the defendant, Blackwell, say, the horses had the distemper, but whether before or alter the trade, he did not know: that the plaintiff left Statesville towards the last of the week, on Friday or Saturday: that the weather was cool and rainy.

*Jason*Hunt, the plaintiff’s witness,

testified, that he went Avith the plaintiff from Greensboro’ to Statesville, the first week in April, 1848: that he took with him two buggies to sell: that the plaintiff went to buy horses : that he staid at Statesville during the week of the Superior Court: that the defendant, Blackwell, proposed to sell to him. his two horses for buggies, took him to the stable of the witness, Grant, and showed him the horses : that the horses seemed tobe laboring under distemper: that Blackwell told him that the horses had distemper: that one had it about four Weeks, and was getting over it, and the other horse had it about two weeks, and it was then at its worst: that he lent Pearce ten dollars to aid in paying the one hundred dollars: that he saw the horses some few weeks afterwards in the possession of the plaintiff, and that they had the glanders : that he had once owned a horse that had *the*glanders, a fatal disease : that the horses, when he saw them the second time, were worth nothing, but had they had only the distemper, would have been worth two hundred and twenty five dollars, or two hundred and fifty dollars •; and that the period of distemper with horses, generally, was about a month. ■ ■

*Reuben Ross,*the plaintiff’s' witness,

testified, that he vvas at Statesville at February Court, 1848: that the defendant,. Long, Avho Avas a btother-in-laAv of the defendant, *51Blackwell, proposed to sell him a pair of horses: said he had two horses to sell: showed him in the stable one of the~ horses : said the other was at Blackwell’s : said the horses, or one of them had the distemper badly, but was getting better: witness asked him if he would take a buggy in part pay for the horses: Long replied, that Blackwell had a buggy: the witness declined to trade, but saw the same-horse he had seen in Statesville, in the possession of the plaintiff, in Greensboro’, in April, 1848; and that the horse, had the glanders: that he did not examine the horse shown to him at Statesville, but the horse seemed to be healthy and had good hair.

*W. J. McElroy,*the plaintiff’s witness,

testified, that the defendant, Blackwell, drove the horses by Oak’s Ferry, in Davie county, about the first of February, 1848: proposed to sell the horses to the witness : that Blackwell said the horses had common distemper, had had it a short time and were getting well: that he saw one of the horses had what he supposed to be distemper: that the wife of the witness was not pleased with the horses, and he declined to buy : that the plaintiff passed with his horses by his house on Saturday about three o’clock, P. M., on his way from States-ville to Greensboro’, about the first week in April, 1848: that the weather was cool and rainy: that it is thirty-five miles from Oak’s Ferry to Statesville : that in May, 1848, he saw the horses again in possession of the plaintiff: that the horses were greatly reduced, and seemed to have glan-ders, though he was no judge.

*C. A. Gillespie*testified, that he resided in Greensboro’: saw the horses in April, 1848, the next.day after the plain, tiff got home, and on examining them, was satisfied, that they .then had the glanders, and so informed the plaintiff: that glanders is .a disease very fatal with horses : that he had managed and had much to do with horses : that moderate exercise with horses affected with distemper was good -for them ; but that, in the first stage of distemper, hard dri*52ving and exposure might do injury : that distemper rarely affected horses longer than four weeks : that persons having the care of horses affected with the glanders for three or four months, would, in his opinion, discover that the disease was not distemper.

*William B.*Wooller, the plaintiff’s witness,

testified, that he, in May or the first of June, 1848, went with the plaintiff to the defendant, Blackwell’s, house, in Iredell county, to tender to him the horses: that he rode one of the horses and the plaintiff the other : that they walked the horses most of the way: rode moderately: that they expected to stay the first night at Oak’s Ferry, forty miles from Greensboro’, but were disappointed : that they went on in the night five miles further: got to Blackwell’s house next day : saw the defendant, Long, first, the defendant, Blackwell, being from home: the plaintiff1 asked how long the horses had had the distemper, to which he replied, he had discovered that one had it when he returned from the north the December before : that Blackwell returned home in a short time: that the plaintiff tendered to him the horses, demanded his horse and the money, and said to Blackwell, that he had told him the horses had distemper, when in fact they had the glanders : Blackwell replied, that he had sold them as diseased horses: the plaintiff'said, he had sold them as distempered horses, and he would sue him: Blackwell said, he would sue the plaintiff, that his horse was not such as he represented him to be; that the plaintiff was a stranger to him; that he expected he would come back, and that he had his witness fixed expressly for him : the plaintiff said, no one was present, and if he had a witness, he must have been hid : that, in a conversation that occurred some fifteen or twenty minutes afterwards, Blackwell said, that one Needham had told him that the plaintiff was dissatisfied with the swap, and was going to bring the horses back: that he had had much to do with horses, and that the horses had the glanders. He also stated, that *53Blackwell said, there had been no glandered horses in his neighborhood.

*John*Hiatt, the plaintiff’s witness,

testified, that he had dealt much in horses ; had bought and sold a great many: that at Guilford Superior Court in April, 1848, he bought these two horses of the plaintiff; thought they had the distemper when he got them ; took them home ; discovered , in two or three days they had the glanders : that glandered horses are worth nothing : that he Returned the horses immediately to the plaintiff, who took them back again : that the usual period for distemper to remain with horses rarely exceeds four weeks: that distemper did not materially impair horses in value, not being considered a dangerous disease : saw Pearce, the plaintiff, afterwards sell the horses at public auction in Greensboro’, when one brought a dollar, and the other one dollar eighty-seven and a half cents.

*Labeccus*Gaither, the plaintiff’s witness,

testified, that in the month of November, 1847, he thought about the middle of the month, he hauled a load of corn to the defendant, Blackwell’s : that he showed him these horses ; called them his match horses: that Blackwell told him they had the distemper, and had had it some time: that sometime after-wards Blackwell rode one of the horses to his house, and led another horse; wanted to sell the horse he led to his son: that he saw the defendant, Blackwell, in February 1848 : that Blackwell wanted to sell him one of the matches : that he declined to buy: that the horses still had something like the distemper : that Blackwell tried at the same time to sell him a horse, that belonged to another person, who accompanied Blackwell on that occasion : that he examined the eyes of the horse, saw the eyes were defective, and mentioned this to Blackwell ; who replied, he had not discovered it before: that he lived within five dr six miles of Blackwell: and that he, Blackwell, dealt a great deal in horses. He also stated, that when Blackwell offered to sell him one of the said match of horses in Februaiv, 1848, he-; *54told the witness if he would buy he would take less than he offered to take before.

*Amos Sharp,*the plaintiff’s witness,

testified, that he lived within about two miles of the defendant, Blackwell; that Blackwell dealt in horses: that during the fall of 1847, and the winter and spring of 1848, he had a glandered horse : that his horse got gradually worse, until he shot it in 1849 : that he never knew his and the defendant's horses to be near each other: that, after the plaintiff got the horses from Blackwell, he heard the said Blackwell say, either that he had limed his troughs or intended to lime them. The witness further states, that it was a common thing in that neighborhood to lime troughs after horses had had distemper.

*Miles*Dobbins, the plaintiff’s witness,

testified, that he was at Statesville on Tuesday of April Court, 1848: that the defendant, Blackwell, took him to the stable and offered to sell him the horses : told him they had distemper : that one was very bad off with it: that he considered the other near about well: that witness examined the horses, saw some small sores about one of the eyes of one of the horses, asked Blackwell if he thought the distemper caused them ; Blackwell replied, he thought it did: the witness told Blackwell the horses did not suit him: Blackwell said to him, “ make me a bid :” the witness declined : Blackwell said the-reason he wished to sell, was because he had too many horses.

*Oliver H.*Farrington, the plaintiff’s witness,

testified, that in the latter part of April and the first part of May, 1848, he went with the plaintiff from Greensboro’ to Laurel Hill, distant about one hundred miles : that they drove those two horses in a two horse waggon ; hauled down a barrel of whiskey and a box of tobacco; were gone eighteen or twenty days; good weather; drove moderately, from eighteen to twenty-five miles each day; drove home empty: that great care was taken in feeding and rubbing off the *55horses : that the horses gradually declined, and seemed to be worse.

*Silas D. Sharp,*the defendant’s witness,

testified, that he was at Statesville on Monday of April Court, 1848 : that he went with the plaintiff and the defendant, Blackwell, to the stables : that Blackwell showed the plaintiff his horses : that the plaintiff said they looked badly: Blackwell replied, yes, they have the distemper, I believe, and if he traded for them he must take them as they stand ; to whicn the plaintiff made no reply: that the plaintiff and Blackwell went into the stable to the stall, in which stood the plaintiff’s horse ; when the plaintiff said his horse was lame with the swinny, and if he took him, he must take him as he stood: that the defendant, Long, came also to the stable : had with him the child of Blackwell; requested him to keep the child, which he did : that the plaintiff, Blackwell and Long were in the stable together a short time out of his hearing: that the terms of the trade he did not hear : that when they came out, Blackwell said he had lost thirty dollars in the trade, but he thought that better than to rub and fatten them up: that he was presen? when the one hundred dollars was paid over: the plaintiff borrowed a part of the money: that he had once owned one of the horses, which he sold to the witness, Cowan, in August, 1847.: that the horse, while he owned him, in March, 1847, had the farey ; broke out in twa sore places on the body behind the forelegs : that he washed with soft soap these sores and they soon got well, and haired over: that he saw sores were again breaking out on the horses: that he said nothing about these sores, because he did not think they would ever injure the horse: that, with this exception, the horse was perfectly healthy and sound, while the witness owned him : that the witness desired to own the horse again, and had gone to the stable on that day to buy the horse if he could get him for eighty-five dollars.

*56
      *William F. Cowan,*the defendant’s witness,

testified, that he owned both the horses; purchased one from Silas Sharp in August, 1847, to match the other: that he kept them until the third of November, 1847, when he sold them to the defendant, Blackwell: that the horses were perfectly sound aqd healthy all the time he owned them, and were so when he let Blackwell have them: that he saw them repeatedly afterwards, while Blackwell owned them: that he saw nothing the matter with either of the horses, until the first of January, 1848 : that one of the horses seemed to be bad off with the distemper: that Blackwell told him he had been offered a certain price for the horses: that he told Blackwell he thought he ought to have taken it, as he feared the horses might have the glanders: that Blackwell said he thought they did not have the glanders, because they improved, and he thought they would soon be well: that he had expressed Iris fears to others, but did not recollect having expressed them to the witness, Jacob Conay : that he saw the plaintiff in the sheets of Statesville on the afternoon he left Statesville; asked him what he had given, and whether Blackwell had sold the horses to him as sound ; to which the plaintiff replied, that he had taken the horses as sound up to the time they took the distemper,'and that he had paid one hundred dollars and a piece of a horse : that it was a wet, cold day, and the weather continued so until Sunday, when it faired away. He also stated, he was induced to suspect glanders, because there was a mare in the neighborhood diseased in such a way as induced him to think she had the glanders ; that the mare did not die, but lived and had two colts ; and that he changed his opinion as to Blackwell’s horses, and thought they had the distemper only.

*James Claywcll,*witness for the defendants,

testified, that he was the dufeudan t, Blackwell’s, clerk; lived with him: that’ he did not know that either of the horses had had distemper until about a week before Christmas, 1847, when he drove *57one of the horses to Clemmonsville, and discovered for the first time that he had a cough: that the other horse did not have the distemper, until about two weeks before April Court, 1848: that he was sitting in the store while the plaintiff, the defendant, Blackwell, and the witness, Wooller, conversed: that the plaintiff told Blackwell he had traded the horses to him as having the distemper, when in fact they had the glanders: that Blackwell refused to take back the horses — told the plaintiff he had taken them as diseased horses: Pearce replied, you can’t prove it-: that he expected him to come back: did not recollect that any thing was said about a witness being fixed, or about Needham: that the defendant, Blackwell, limed his troughs after the plaintiff got the horsesr that he nerer discovered any thing about the horses but distemper, and thought the horses had the distemper •: that the defendant, Blackwell, bought a mare after he let the plaintiff have the horses : that she had the distemper, when the defendant, Blackwell, got her: that he kept her in a stable to herself: that she got well, and the defendant, Blackwell, afterwards sold her,

*William Taylor,*the defendant’s witness,

testified, that he was a brother-in-law of the defendant, Blackwell: that he worked the horses about the first of March, 1848, and that he thought they had the distemper: that he worked them about a week in a team with two of his own horses, watered them with the same bucket: that they performed well, and he thought they had nothing but the distemper; and his horses took no distemper.

*Robert*Baxter, the defendant’s witness,

testified, that he had much to do with horses : that he saw the horses shortly after the plaintiff got them, and he thought they had the distemper: that he had known distemper to continue with one or two horses as long as five or six weeks: that exposure and hard work would injure horses afflicted with the distemper.

*58
      *Jacob Conay,*the plaintiff’s witness,

testified, that the defendant, Blackwell, tried to sell his son one of these horses, and at another time tried to sell one of them to him-;said they had the distemper: that this was a short time before the plaintiff got themthat he asked the witness, Cowan, about the horses, and Cowan told him not to trade for‘them, that they had the .glanders: that the defendant, Blackwell, after he parted with the horses, white-washed -the inside of his stable and the trough : that the defendant, Blackwell, traded in horses.

*Joel McLean,*the plaintiff’s witness,

testified, that he had managed and dealt in horses for many years; that glanders •and distemper were two separate and distinct diseases, resembling each other: that distemper continued would turn into glanders: that glanders was often produced by distemper ; that farey is intimately connected with glanders: they will run into each other, or their symptoms will mingle together, and before either arrives at its fatal termination, its associate will almost invariably appear: an animal inoculated with the matter oí farcy, will often be afflicted with glanders, while the matter of glanders will frequently produce farcy — they are different types or stages of the same disease: that moderate exercise is good for distemper, while exposure and hard labor are injurious to horses in the, incipient state of distemper — tended to inflame and diffuse or scatter the disease through the system : that distemper was generally considered harmless : that horses were rarely affected with distemper longer than four or five weeks— more generally a shorter space of time : that glanders Avould likely in all instances, be deieeted4n less time than three or four months: that glandered horses would often eat heartily, keep in' finé order, and do service for a long time, and some few horses would recover, but the disease was generally fatal.

Several witnesses testified, that the general character of all the witnesses on both sides was good.

*59The counsel for the defendants moved his Honor to charge the jury, that if they believed that the trade was upon the terms stated by the witness, Silas Sharp, it was immaterial whether the horses had common distemper or glanders, or whether the defendants knew it or not, or whether the fact was disclosed to the plaintiff or not, the defendants were entitled to a verdict..

The Court charged the jury, that, if the defendant, Black-' well, sold the horses to the plantiff and represented that they had the distemper, a disease which would last but a short time and do them no injury, but knew at the same time that they had a fatal disease called glanders, and' the-plaintiff was ignorant of this, they should render a verdict for the plaintiff, and the measure of his damage-would be the difference between the value of the horses with the distemper, and what they were worth, having the disease called glanders

That, if they were not satisfied that the horses had the-glanders, they must find for the defendants : - x

That, if the horses had the glanders and the defendants: did not know it, they should find for the defendants :

That, if the plaintiff knew as much about the disease which the horses had, as the defendants, they should find for the defendants:

That, if the horses had the glanders,, and it was brought-about by hard driving or improper exposure to the weather by the plaintiff after he purchased them, they should find for the defendants:

That, if the plaintiff took the horses at his own risk with all faults, and Blackwell used no artifice or contrivance to cheat or defraud him, they should find for the defendantss

That Blackwell was under no obligation to disclose any defects, if the plaintiff agreed to take the horses at his own risk; but that this rule would not apply, if artifice or contrivance was resorted to for .the purpose of throwing the plaintiff off his guard, and thereby to cheat, and defraud *60him ; and whether this was done or not, was a question entirely for them:

.That, if they should be satisfied, that the defendant, Long, had nothing to do with the trade, and did not participate in the fraud, if the other defendant was guilty of any, they could find a verdiqt against one and in favor of the other.

Under this instruction1, the jury found a verdict against Blackwell and in favor of Long.

Rule for a new trial — rule discharged, and defendant, Blackwell, appealed to the Supreme Court,

*Kerr,*for the plaintiff.

J’. *T.*Morehead, for the defendant.

Nash, J.

Action on the case for deceit and false warranty in the sale of horses. It is unnecessary here to state the case at length. The principles of law, deducible from the evidence, are set forth in the Judge’s charge; and the exception is to the instructions at large.

The first instruction is, that, if the defendant, Blackwell, sold the horses to the plaintiff, and represented that they had the distemper, a disease which would last but a short time and do them no injury, but at the *same time knew*that they had a fatal disease, called the glanders, of which, the plaintiff was ignorant, they should render a verdict for the plaintiff. There certainly can be no objection to *this*charge — the defendants’ liability is strongly and fully put on the ground of fraud practised by him. The 2d, 3d, 4th and 5th. branches of the charge were in favor of the defendants, and they cannot complain of them.

The main argument was upon the 6th branch of the instructions. It was as follows: “ If the plaintiff took the horses at his own risk, with all faults, and Blackwell used no artifice or contrivance to cheat or defraud him, they should find for the defendants : That he was under no obligation to disclose any defects, if the plaintiff agreed to take *61the horses at his own risk ; but that this rule would not apply, if artifice or contrivance was resorted to for the purpose of throwing the plaintiff off his guard, and thereby to cheat and defraud him.” This portion of the charge is nearly in the language of this Court in the case of *Smith*v *Andrews,*8 Ire. 6, and it fully sustains his Honor, the presiding Judge. When a vendee takes an article at his own risk or with all faults, he becomes his own insurer, and the seller is relieved from all obligation to disclose any fault, he may know the article has ; but he must resort to no trick or contrivance to conceal the, defect or mislead the purchaser. *Pickering*v *Dawson,*4 Taun. 779. There is no error in law in the charge, and in every form in which it is put by the Court, the jury have found against the defendant upon the question of fraud.

Per Curiam. Judgment affirmed.