Rogers v. Ferris

Grant, J. (after stating the facts). Plaintiff’s right of recovery depends upon whether a warranty was given, and whether the mare was sound, according to its terms. Errors are assigned upon the testimony and the charge of the court. 1. It was not error to permit the plaintiff to testify that he relied upon the warranty in making the purchase. If he had not relied upon it, he could not have recovered. 2. One Schubert, a witness for plaintiff, testified that about the middle of July he noticed a puff on the right hind leg 'of the mare; that it looked like a bog spavin; that he was raised on a farm with horses, had been a blacksmith 15 years, and that he did not think such a spavin would appear within a week after it had been contracted. On cross-examination he testified that he had never watched one until it was fully developed, that he had reatd some about them, but had .no practical knowledge of them. This testimony was very weak, and evidently could have had but very little, if any, weight with the jury. We cannot, however, say that he had no knowledge on the subject, and we think the court was correct in admitting it, and holding that its weight was for the jury. 3. It is insisted that the court erroneously instructed the jury as follows: “There has been some evidence introduced for your consideration, in behalf of the plaintiff, tending to show that he took this horse back at different times, and complained to the defendant of the growth of these bunches [129] upon the horse’s hind legs; and the fact remains undisputed that about the 15th of September he took the horse back and left it there, and did not again take possession of the horse.” Ii is urged that this statement is an encroachment on the province of the jury upon a point where there was a conflict of evidence. There was no conflict upon the question of his taking the horse back September 15th, leaving her there, and not again taking possession. There was a conflict as to when plaintiff first complained to defendant of the bunches. The plaintiff testified directly and positively that he took the horse to defendant at different times, and made complaint. Defendant admits that the horse was at his stable at different times between July 2d and September 15th, but contends that plaintiff made no complaint. The statement of the judge was true, and the only error was that he did not say to the jury that the defendant denied these complaints. This, however, is not the error complained of. It is entirely proper for a court to tell the jury what the theory of each party is, and that his evidence tends to support it, and it is for them to examine the evidence, and determine what the facts are upon which their verdict must be based. 4. The court said to the jury that there were but two questions for them, to decide. (1) Did the defendant, at the time of the sale of the mare, warrant her to be sound? And (2) if such warranty was made, was she sound at that time? It is now insisted that there was another question for the jury to pass upon, viz., whether the agreement that the defendant should keep and care for the horse while she was being treated, and that the plaintiff should pay the surgeon’s bill, w»as not a settlement of any defect in the warranty. It does not appear that this question was raised upon the trial, or the attention of the court called to it. The point, therefore, cannot be considered in this court. 5. The court said to the jury that plaintiff stated in [130] his letter of November 21st “that he would not take the horse, as he considered that there had been a breach of the warranty.” We think this is the correct construction to be placed upon the letter. G. It is nest insisted that the court erred in charging the jury that “ there is no evidence in this case that the unsoundness of the horse originated from any other cause than the defects upon the hind legs of the animal.” Counsel have not pointed us to any testimony in the record upon which they rely to controvert this statement of the court. It was the duty of counsel in their brief to point out such testimony, if there was any. The judgment is affirmed. The other Justices concurred.