Birdseye v. Frost , 34 Barb. 367 ( 1860 )

By the Court, Multan, J.

The justice having found, upon conflicting evidence, that the defendant made the warranty charged in the complaint, and the amount of damages the plaintiff sustained by the breach of" such warranty, these questions cannot be reviewed by us upon this appeal.

The only question before us is, whether upon the evidence there was a breach of the warranty, for which the plaintiff was entitled to recover; in other words, whether the warranty applied to the defects which it was proved the horses sold to the plaintiff had, at the time of such sale. It is not pretended by the defendant bnt that the horses had ring-bones on their legs, but he insists that they were so plain to be seen that the plaintiff must have seen them, and hence that his warranty of soundness did not apply to them. If the defects were thus visible, the law is that a general warranty of soundness does not reach them.. (Chit, on Cont. 456; Pars, on Cont. 459, note i.) The first question then is one of fact; were the ringbones visible to an ordinary observer. P

The plaintiff says that after the trial, and after the defects were pointed out to him, he saw them. He discovered on the sorrel horse a bunch above the hoof, on each forward hoof, on the forward part of the ankle. The roan horse had a large bunch on his fore foot, in the same place. This discovery, he says, was made in about an hour after the trade.

Coulter, who accompanied the plaintiff on the day the plaintiff first went to examine the horses, (which was the Wednesday preceding the Monday on which the trade was completed,) says he saw the horses on the same day of and after the trade; the roan one was lame in one of his legs; above the knee was a scratch, and on the foot a ringbone; on the sorrel horse were bunches on both feet, on the fetlock between the hoof and joint, which had the appearance of ring-bones growing. He did not discover ringbones when he first went with the plaintiff. He took up one foot to see if he was flat footed. The horse when brought to witness’ house, the day of the trade, limped so it could be seen 50 rods off. He could see those bunches, if looking for them, as far off as the end of the room. . Ira Ellis says, one of the horses had ringbones from 6 months old. Henry S. Doolett says, the ringbones are not large; a detector of ringbones might see them across the room. On this evidence, it is quite clear that the ringbones were on the horse’s legs, and were visible the day the plaintiff first saw them, as well as the day of the trial. But it is not enough that the defects exist and are visible. They must be such as could be discerned by an ordinary observer examining the animal with the view of trading for it, and such as not to require skill to detect them. (Chit. on Cont. 456. Pars. Merc. Law, 57. 10 Vesey, 507. Margetson v. Wright, 20 Eng. C. L. Rep. 269.) This precise question—whether the defects under consideration were visible at the time of the trade, within the meaning of the authorities cited, so as to take them out of the operation of the warranty—was before the justice, and passed upon by him, and it seems to me his finding must be conclusive. While there is not a conflict of evidence, arising from witnesses swearing to different and conflicting statements of facts or opinions, yet the facts sworn to by the different witnesses might well lead to different and conflicting conclusions. For example, the plaintiff swears that within an hour after the trade, on his attention being called to the defects, he discovered a ringbone on one of the horse’s legs, which was a large bunch: Coulter, on the other hand, testifies that he was acquainted with ringbones, and examined the leg of one of the horses, and he did not discover the ringbone. The justice had before him all the facts before us; he had a much better opportunity to judge of the credibility and intelligence of the witnesses; and having rendered a judgment in favor of a party who has been wronged, either by the reliance which he placed on the defendant’s representations, or by an omission to inspect with greater care the condition of the horses, we ought not to disturb it, unless imperiously required to do so by some stringent rule of law.

[Onondaga General Term, July 3, 1860.

The county court, in rendering the judgment on the ground that the defects were visible, and therefore not reached by the warranty, treated the question as one of law merely. In this I think the county judge erred. It is probably a mixed question of law and fact; and is, therefore, so far as the fact is involved, within the rule that forbids the reversal of the judgment of a justice rendered on conflicting evidence.

For these reasons, I am of the opinion that the judgment of the county court should be reversed, and that of the justice affirmed.

Judgment reversed.

Allen, Mullin and Morgan, Justices.]