Rogers v. Ackerman , 22 Barb. 134 ( 1856 )

By the Court, Paige, J.

The question whether the words used by the plaintiff, at the sale of the horses, as to their ages, amounted to a warranty, was a question of fact for the jury. (10 Wend. 411.) Ho particular phraseology is necessary to constitute a warranty, but the words used by the vendor should be understood by the parties as an absolute assertion, and not the expression of an opinion. And it is for the jury to determine how the words were understood and intended by the parties. (8 Cowen, 26,7. 4 id. 442. 20 John. 203.) I think the evidence in this case was sufficient to be submitted to the jury to determine whether the words used by the plaintiff amounted to a warranty, or not; and that their verdict in favor of the defendant was not so unsupported by the evidence as to justify the county court in disturbing it. The rule seems to be, that where there is evidence on both sides, the judgment of the justice cannot be reversed by the county court, although the verdict of the jury was against the weight of evidence; and that if, in such case, the county court should reverse the judgment of the justice, its judgment of reversal will be reversed by the supreme court. (21 Wend. 305. 18 id; 141,144, 145. 3 Hill, 75. 15 Wend. 490. 18 Barb. 350. 8 How. Pr. Rep. 377. 2 Sand. R. 222. 12 Barb. 387.) The evidence as to the difference between the actual value of the horses, regarding them as over 20 years old, and what their value would have been had they been only 10 and 11 years old, was competent evidence. For the witnesses who testified to such difference in value were acquainted with the horses, and are presumed to have been acquainted with the value of horses. Witnesses acquainted with the value of personal property are allowed to testify to their opinion of its value. (5 Denio, 84.) The rule that Avitnesses must state facts, and not opinions, has no application to such cases. The form of the question to the witnesses who spoke to the difference in value of the horses, was unobjectionable. The objection was that the defendant had not previously proved that the horses were older than they Avere represented to be, and that the opinion of the witnesses was not proper evidence of the difference in value. This objection was properly overruled by the justice, because the defendant had previously proved that the horses were older than the plaintiff represented them to be ; and because their opinion of the difference of value was competent evidence. The question put to the witness in Lewis v. Trickey, (20 Barb. 387,) bears no resemblance to the questions put to the Avitnesses in this case.

[Clinton General Term, May 6, 1856.

In my opinion the judgment of the county court' should be reversed, and that of the justice affirmed.

Judgment accordingly.

C. L. Allen, James, Podge and RoseJcrans, Justices.]