The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-04-02

may return the property bought and bring
SUIT Tor the money paid, or defend success
iuiIy against an action for the price, II he
has not already paid it. He must elect TO
treat the contract as void within a reason
ape ume after he has discovered the fraud
or he VIII be held TO have acquiesced in
the pdrchase and affirmed the contract.
H. instead OF holding the contract to be
Void, ne chooses to recognize and affirm 1t
ne may do so, and bring suit to recover
inc damage he has sustained by the fraud.
Proud is defined to be any kind of an arti-
nee employed by one person for the pur-
pose OF decelving another. Every false
statement, however, made by person
Trying TO sell horse is not considered
fraud In law. The law recognizes the fact
that such person is apt TO indulge in talk
magniiylng the value OF his goods and
praIslng his wares, and will even
let him lilo a little as to how
much the property cost him. Tho
law considers such words and statements
us sellers talk" concerning which "let
the buyer beware" and which are not suf-
hclent foundation for an action for fraud.
False statements, to he the grounds Of
avoiding the sale, or for an action for de-
ceit, should generally be concerning the
article or animal itself, and not be wholly
confined TO u collateral matter. Tho pur-
chaser must have been deceived by the
fraud before he can take advantage Of il.
ii he did not believe the false representa-
tons made TO him he was not injured by
them, and cannot make them the basis OF
any action. Only the defrauded party can
rescind the sale on account of fraud. The
guilty one is bound by il unless the other
is willing 10 release him. No one can take
advantage OF his own wrong.
The difference between simple war
ranty and Il fraudulent misrepresentation
Is one OF knowledge ON the part OF the per-
son making it, A vendor, in order to
make sale, says horse is sound II he
honestly thinks so, although the animal
proves to be unsound, the purchaser is
bound by the bargain, but may bring an
action for damages for breach OF the war
ranty. II, however, the seller knew the
horse was not sound when lac made the
statement, il is fraud, and the purchaser
may send back the animal aud sue Tor the
money paid, or may keep it aud sue for
his damages in an action for deceit. Ii is
held that ii the vendor refuses TO take the
animal back, the purchaser, alter he has
offered TO return II, may sell il for the
best price he can get aud collect the diff
ference, together with the cost of keeping.
The ordinary damages for breach Of war
ranty is the difference between the actual
value OF the animal and what il would
have been worth ii it had been as war
ranied. The rules OF law in regard to
warranty and fraud apply 10 an exchange
OF property the same as IN cases oi sales
for money.
When person sells an animal which
he knows 10 be infected with contagious
disease, and such disease is la cunsc-
quence communicated to the herd OF the
purchaser, the seller is liable Tor all The
loss to the cattle in the purchasers herd
by reason OF their catching the disease.
When horse was represented TO be per.
iccily gentle and kind. the purchaser
knowing such representations to be false,
and the first time the purchaser hitched
up, the horse ran and kicked and over
turned the buggy, throwing outthe driver,
Il was held in a suit for damages that the
purchaser could recover Tor the injuries 20
the buggy and to his person.