Fowler v. Lewis , 25 Tex. 380 ( 1860 )

Roberts, J.

—The questions in this case are, 1st, Was there a warranty of the horse when sold? 2d, Was the horse unsound as charged? 3d, Was the horse delivered back as alleged, or such tender made as amounted to a delivery back of the horse ?

Hpon all these questions the evidence was somewhat indefinite and unsatisfactory and conflicting. The evidence of the promise to pay $150 for the horse, and the delivery of the horse at the time of the trade, is plain and certain beyond question. And as the evidence tending to establish a defense is conflicting, and the jury have passed upon it, and there being no error in the charge of the court, we cannot set aside the verdict.

The point raised in the bill of exceptions, upon the exclusion of evidence, cannot be sustained, because, 1st, it does not appear what defendant below proposed to read from the book, treating of the diseases of horses, further than that it was in relation to the disease called “curb;” and because, 2d, it would have been hearsay testimony, about a matter upon which a competent witness had already spoken very fully, and doubtless satisfactorily to the court and jury.

The evidence was not of a character to require the court to give the charge asked" by the defendant below, further than it was embraced in the original charge, admitting the charge asked to have, been strictly correct, which it is unnecessary now to consider. ■

Because there is no error, the judgment must be

Affirmed.