Sherwood v. Hulett

Maeshall, J. Error is assigned because the court instructed the jury that anything said by defendant’s wife rei-specting the character of the horse prior to the time the contract was made, September 26, 1904, was immaterial. As we read the evidence the instruction was proper. The evidence is clear that the contract was wholly made on the day mentioned and that whatever was said relating to the character of the horse was said at that time. Appellant testified, as appears by the printed case, thus: “The tali that I had with them in regard to the kindness and gentleness of the horse was just before I made the trade. Mrs. Hulett was present.” The other testimony is in harmony therewith, especially as regards any talk which in any reasonable view of the case could have been binding upon the defendant. Looking at the evidence as a whole it seems that the complaint under consideration is groundless. Error is assigned because the court did not submit to the jury all of the issues. It is suggested that the question of implied warranty should have been submitted. The answer to that is that appellant grounded his case from first to last on express warranty, and he requested submission thereof to the jury upon the, theory that it should turn on [564] whether there was any such warranty or not, and it was so submitted. Error is assigned on exceptions to the court’s instructions. That assignment of error is not argued in the brief further than to say, “The instructions of the court to the jury were not only incorrect in several instances, hut they were also misleading and bewildering.” Counsel failed to point out in what respect the instructions were faulty, as suggested. He merely said as to the alleged errors in the instructions, “Appellant has already made his position clear.” That seems to refer to the instruction restricting the circumstances relating to the contract of sale to what occurred on the 26th day of September, 1904, and submitting the case on the theory that appellant rested his claim upon express warranty. Those matters have been sufficiently referred to. There are several other assignments of error, but as they are not argued they must be regarded as abandoned. The court, as a rule, does not consider assignments of error which are not argued so as to bring fairly to its attention the infirmities complained of. Butler v. State, 102 Wis. 364, 78 N. W. 590; Cornell v. State, 104 Wis. 527, 80 N. W. 745; State ex rel. Wis. Tel. Co. v. Sheboygan, 114 Wis. 505, 90 N. W. 441. The ease seems to be barren of harmful error. By the Court. — The judgment is affirmed.