WHITINiG, J.
Plaintiff bought a span of mares of defendant ánd he seeks damages for alleged breach of warranty as to soundness of one mare and for alleged false representation as to said mare being in foal. Verdict and judgment for plaintiff. From such judgment and an order denying a new trial this appeal was taken.
[1] All specifications and assignments of error, except one, question the rulings upon admission of evidence; the other questions the sufficiency of the evidence to support the verdict. No specification or assignment questions the correctness of the instructions ; such instructions therefore are, as against appellant, the law of the case.
[17]*17[2] Appellant contends that there was no evidence that defendant warranted the mare to be in foal and that there was no evidence to show the amount of damage from breach of warranty of soundness alone, that all evidence as to damages coupled the two alleged defects in the estimate as to damages. The court, by its instructions, assumed that the representation as to the mare being in foal was in effect a warranty. If such instruction was erroneous it should have been excepted to. There was ample evidence to support the verdict under the instructions given.
[3-6] If there was any error in excluding evidence it was cured by the later receipt of evidence along same line sought by Questions asked. The objections interposed by appellant to evidence were that such evidence was immaterial and irrelevant, with, in most cases, the added ground that no foundation was laid. To object that'the evidence sought is immaterial or irrelevent, without pointing out why immaterial or irrelevant, presents nothing to the trial court. There was no merit in the objection that no proper foundation had been laid. The witness had, in each case, testified to ample facts upon which to base answers to questions asked. Defendant testified to value of sound mare. On motion this testimony -was stricken out. This ruling was correct because the evidence was absolutely- immaterial, and especially so because it gave the value at time of trial.
The judgment and order appealed from are affirmed.
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