Taylor vs. Tillotson, 16 Wend. 494

By the Chancellor. The declaration in the original suit in this case before the justice was certainly very imperfect; and if the action had originated in a court of record, /I think it must have been considered fatally defective on a general demurrer, or upon a motion in arrest of judgment, particularly as it did not allege that the horse was injured or rendered less valuable in consequence of his fright and running away, or that the defendant was aware that those circumstances would injure the horse or render him less valuable to the owner than he was before.

The action was for a deceit in inducing the plaintiff to take back the horse and refund the purchase money, by a .misrepresentation or fraudulent concealment of the fact that the horse had been injured and rendered less valuable in consequence of his having been frightened and running away with the waggon. It was necessary, therefore, that the plaintiff should allege and prove that the horse would be thus injured by the fright and running away, and that the defendant knew it would have that effect.

For if the defendant was not aware of the fact that what had occurred in consequence of the accident wou]j ¡njure the horse, there could not have been any fraudulent concealment in the case.

But as pleadings in justices’ courts are always informal, and will seldom bear the test of legal scrutiny; as there is no doubt that the parties went to trial, especially in the common pleas upon the appeal, with a sufficient knowledge of what was the real subject of controversy in the suit, and as there was no motion in arrest of judgment from any thing that appears in the case, 1 am disposed to pass over the defects in the declaration, and examine the question in controversy upon its merits.

I cannot concur with the counsel for the plaintiff in error that under such an agreement for a conditional sale as was made in this case, the horse was at the risk of the vendor during the period allowed to Taylor to return him if he did not suit, and receive back his money.

It was not a case of bailment merely; for by the conditional sale and •delivery of the horse to the purchaser, and the payment of the purchase money, the title of the property for the time was completely vested in the purchaser, subject to be divested, however, by the exercise of his right of election at the end of the prescribed period to return the horse and to receive back the purchase money. In this respect the case is materially different from that of De Fondear v. Shottenkirk, 3 Johns. Rep. 170, to which we are referred by the counsel for the plaintiff in error upon the argument.

In that case there was a mere negotiation for a sale, or at most a sale upon a suspensive condition ; so that the bargain itself was not complete, as the purchaser had not paid or agreed to pay any particular amount of purchase money. Although the price was named by De Fondear, the time and manner of payment was not definitely fixed upon; and Shottenkirk had not absolutely agreed to pay the price asked, if the slave was not returned at the end of any prescribed period.

He merely took him upon trial, to see if the negro would be satisfied to remain with him as his master if he thought fit to complete the bargain for his purchase. It was therefore a case in which either party might have resiled from the contract or broken off the negotiation at any time before Shottenkirk had agreed to accept the offer of De Fondear to sell for the price specified. The contract in the present case was one which is very uncommon here, inasmuch as the purchase money was actually paid at the time the horse was received on trial.

It was, therefore, what in the civil law is called a sale upon a condition dissolutory ; or more properly what, in the Mussulman law, is termed a condition of option ; that is, a sale which is complete and binding upon one party immediately, but with a stipulation as to the other that he shall have the option of adhering to the contract, or 'of rescinding the sale and annulling the contract within a certain specified time, and receiving or paying back the purchase money.

It does not very satisfactorily appear what the rule of the civil law is upon the question as to who shall bear the loss of an injury happening to the property which is the subject of such a sale, without the fault of either party, during the time prescribed by the condition of option; and I have not been able to find any reported case, either in this country or in England, where this question has arisen and been settled.

Domat says, if a thing is sold upon trial for a certain time on condition that it shall be no sale if it does not please the buyer, all the charges and the profit and loss which happen before or during the time of trial, the sale not being as yet accomplished, accrue to the seller, who is still the master. Domat, B. 1. tit. 2. § 7. art. 6.

This language is general, and would seem to apply to cases of dissolutory as well as to suspensive conditions ; although it is inconsistent with the general rule of the civil law that when the bargain is complete, by the payment or security of the purchase money, the property is at the risk of the purchaser, whether it has or has not been delivered.

But in the Spanish Partidas, which are founded upon the general principles of the civil law, it is said that where a condition is annexed to the sale, and the thing sold is deteriorated or ameliorated before the happening of the condition, the loss or profit will be on account of the buyer; and if the thing is lost or wholly destroyed, in whatever way it may happen, the loss will be on account of the seller. In the Napoleon code, although a great variety of cases are provided for, I find no principle laid down which appears to reach the one now under consideration..

Neither does the question appear to have been settled by the law of Scotland ; although the principle that dissolving conditions are merely personal, and do not prevent the passing of the title, so as to render the sale absolute if the property has passed into the hands of third parties, or is attached bf creditors, seems to be wholly inconsistent with the idea that the property remains at the risk of the vendor during the time prescribed in the condition of option. See 1 Bell’s Comm. 239.

By adverting, however, to the writings of a learned Sheikh, who compiled the extensive and valuable treatise on the Mussulman laws, called Al Redaya, or the Guide, more than six hundred years since, we find a principle laid down which is directly applicable to the case under consideration ; a stipulation of a condition of option on the part of the purchaser being common in sales in Mahommedan countries, being founded upon the advice of the Prophet himself to one of his companions and disciples who had frequently been taken in by purchasing without first seeing or trying the property purchased.

The principle of the Mussulman law, as laid down by this learned commentator is, that if the condition of option is stipulated on the part of the purchaser, and the property is. injured, he is not permitted to return it, but must bear .the loss, as the option is thereby determined ; which is also the case where the property is wholly lost or destroyed. See 2 Hamilton’s Hedaya, B. 16. ch. 2. p. 384.

Although this rule is found among the laws of semi-barbarians, it is one which is perfectly equitable and proper when applied to a case like the present, where there is an actual change of the possession of the property, in consequence of the conditional sale, and the purchase money has been paid or received.

As the property which is the subject of the sale, is, for the time at least, the property of the purchaser, and subject to his absolute disposition and control; as it depends upon his own volition whether it shall continue to be his, and as he is entitled to retain it, and thus secure to himself the benefit of any increase in its value, as well as that which may be derived from its use in the mean time, it certainly must be right in principle that he should bear the loss, if any occurs while the contract of sale still continues in full force as against the vendor, where the parties have made no agreement as to who shall sustain such loss.

In this case also the injury, if any, may be said to be in some measure attributable to the defendant himself, as he, if any one, was in fault, in using the horse before a wagon to which the whiffletree was not properly secured, so as to guard against such an accident.

For as I understand the testimony, the accident was not owing to any vice of the horse, but to the giving away of something about the wagon or harness, by which the horse became frightened ; and if there was any fault or want of care on the part of Taylor, the rule of the civil law is explicit that he alone is answerable for the loss. 1 Domat, B. 1. tit. 2. § 7. art. 11.

Another well settled principle of the civil law is, that if there is any agreement of the parties as to injuries which may occur during the time fixed by the suspensive condition of option, the parties must be bound by that agreement, whatever their rights would have been if no such agreement had been made. 1 Domat, B. 1. tit. 2. § 7. art. 13.

In this case there was an agreement that the purchaser should not injure the horse during the time of trial, and the vendor agreed to run any risk arising from the nicking; and I am inclined to think that such an injury as is complained of in this case would be such an one as was provided for by this agreement. The parties certainly could not have contemplated an intentional injury done to the horse, although such an one was covered by the terms of the agreement, Neither can I believe they intended to confine their agreement to an injury arising from gross carelessness.

Upon the whole I am satisfied that Tillotson was not bound to take back the horse, if he was actually injured while in the hands of Taylor so as materially to diminish his value; and there is no evidence in the case that he took him back with a full knowledge of all the facts of the case, as those facts were detailed by the witnesses on the trial. Whether there was such an injury to the horse as maferia]]y t0 diminish his value, was a question of fact proper for the jury.

The question whether the defendant had induced the plaintiff to take the horse back by an intentional misrepresentation or concealment of the real circumstances of the case, was also a question of fact. And although upon this evidence I should probably have come to a different conclusion, both as to the alleged fraud, and as to the extent of the injury which the plaintiff had sustained, from what the jury did, I am not prepared to say there was not sufficient evidence in the case to make it the duty of the court to submit the questions of fact to the jury for their decision thereon.

I must therefore vote to affirm the judgment of the supreme court. Senator Edwards also delivered an opinion in favor of an affirmance of the judgment of the supreme court. On the question being put, Shall this judgment be reversed? all the members of the court, with the exception of two (twenty-one being present) voted in the negative. Whereupon the judgment of the supreme court was affirmed.