Bryant v. Cunningham

Irvine, C. This was an action by the plaintiff in error against the defendants in error on a promissory note. The defendants answered that the note was. given in payment for a horse, pleading a warranty, a breach thereof, and a rescission and offer to return the horse. There was a general verdict for the defendants, and also special findings that the warranty had been given, that it had been broken, and that there had been an offer to return the horse within a reasonable time. There is no certificate of the cleric authenticating what is attached to the transcript as the bill of exceptions or a copy thereof; and we are for that reason precluded from an examination of the assignment that the verdict is not sustained by the evidence, as well as assignments attacking rulings upon the evidence and some going to the instructions where a question is raised as to their applicability to the evidence. Complaint is made of the refusal to give an instruction stating that the rule of damages for breach of warranty is the difference between the actual value of the article at the time of sale and what it would have been worth if as warranted. This instruction was correct as applied to the case where the vendee retains the property and sues or sets off damages, but it neglected the contention in this case that there had been a rescission, which would constitute a complete defense to the note. Another instruction embodying this feature, and stating the rule of damages as contended for in case no seasonable offer to return was found to have been made, was given and at the request of plaintiff. Complaint is made of the refusal to give another instruction, but an examination of the record discloses that every feature thereof was embraced in some part of the court’s charge. Affirmed.