Brinser v. Longenecker & Bausman

Pee Cue:am, In his statement of claim, plaintiff commences by averring: “ This suit is founded and based upon a warranty, on the part of the defendants, of the soundness and healthy condition of a lot of heifers bought by plaintiff of defendants and sold by [56] defendants to plaintiff.” The natural inference from this comprehensive averment is, that each and every item of plaintiff’s claim is founded on the alleged warranty; but, after stating in detail the terms, breach, etc., of the warranty, the plaintiff in the next paragraph of his statement avers that two of the heifers, worth together about thirty-five dollars, purchased by him from defendants were never delivered, etc. One of the subjects of complaint here is that the learned trial judge, in his charge to the jury, took no notice of this latter item of claim. The principal contention appears to have been in regard to the alleged warranty, and breach thereof, upon which the main part of plaintiff’s claim was distinctly based. The learned judge was not requested to instruct the jury as to the smaller item of claim based on the alleged nondelivery of two of the heifers purchased and paid for ; nor was he bound to do so without being requested. If he omitted to call the jury’s attention to that item of claim, the least the plaintiff should have done would have been to remind him of the fact. Having neglected to do so at the proper time, he has no right to complain now. As to the principal item of claim, depending solely on the alleged warranty, etc., the questions of fact, presented by the testimony relating thereto, were submitted to the jury in a charge which appears to be adequate and free from any error that would justif)’- a reversal of the judgment, entered on a verdict predicated of a finding of all the controlling facts against the plaintiff. ■ We find nothing in either of the specifications that requires further discussion. The entire claim was, at best, a stale one, accompanied by circumstances that were calculated to discredit rather than sustain it. Judgment affirmed.