Bergeler v. Michael

LyoN, O. J. If we understand correctly tbe grounds upon which the learned circuit judge nonsuited tbe plaintiff, they are that (1) an express warranty is not sufficiently alleged in the complaint; and (2) under tbe testimony tbe plaintiff is not entitled to recover on an implied warranty. We shall consider only the first of these grounds. Tbe complaint alleges that the defendant represented the horse to be fit and good for breeding purposes. The judge regarded this as merely the expression of an opinion, and thought that something more should be alleged before it could properly be held to be the assertion of a fact. He observed, however, that the complaint would be sufficient bad the word warranted been used therein instead of represented. We think the complaint sufficiently alleges that the defendant represented to plaintiff as a fact that the horse was good for breeding purposes; and if the plaintiff relied upon the truth of such representation in making the purchase, as it is alleged he did, this constitutes an express warranty of the procreative capacity of the horse. This is plainly’' the meaning which the pleader intended to convey, and substantial justice between the parties requires that t.he complaint should ' be construed to give effect to such intention. Besides, under many adjudications of this court, on demurrer ore tenus. a pleading will be more liberally' construed to save it than it would be on a general de [629] murrer interposed before trial. But it is scarcely necessary to invoke that rule in order to Hold that the complaint under consideration alleges an express warranty- and' a breach thereof. By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.