Springsteed v. Lawson

14 Abb. Pr. 328, 23 How. Pr. 302

Opinion

By the Court.

Footnotes

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*—Peckham, J.

is an appeal from a judgment entered on a verdict for the defendant at a circuit in Albany. The case is heard on exceptions, and a motion for a new trial on account of misconduct in the jury comes on at the same time by order of the special term where that motion was first made.

The first ground relied upon in the exceptions is, that the court erred in refusing to charge that the plaintiff might recover in-this case without proving fraud. The complaint in this case contains all the elements of two distinct separate causes of action—a breach of warranty, and also fraud in the sale of a horse. Though perhaps within the spirit of the Code (that all actions arising out of the same transactions may be joined), these causes might have been united, yet that having been long since settled the other way, it is not advisable to review it. (Sweet a. Ingerson, 12 How. Pr., 331.)

The plaintiff was then called upon to elect, and he plainly gave the court to understand that he elected to make this a complaint for deceit and fraud in the sale. After the proof had been closed, and the trial had proceeded throughout upon the basis of its being an action for fraud, it was quite too late to change position, and then claim it to be an action simply for breach of warranty. The court very properly held the plaintiff bound by his election. The charge was also unobjectionable as to a cold, controllable by ordinary remedies, not being in this case such an unsoundness as to constitute a breach of warranty. I should have understood at the trial, that the judge intended by this charge to say that if the horse had a mere common cold, not affecting his general health or his use, the plaintiff could not recover. If the charge was not so understood, the plaintiff should have asked for its modification, which he omitted to do. He can scarcely be allowed to take up.a single separate sentence, capable of being differently understood, and except to it, without presenting the modification he claimed. Understood as I think the court intended his proposition, there was no case made by the evidence for any verdict or damages.

The last point made to reverse the judgment is, that the court erroneously allowed the defendant to prove, on the cross-examination of plaintiff, the price for which he sold the horse in the winter after the purchase by plaintiff. This was entirely unobjectionable on cross-examination. The plaintiff on direct examination had sworn that the horse was worth but $125 when he bought him, and would have been worth $500 if he were as warranted. There was no pretence of any change in the horse for the better, from the time of his purchase to the time of the sale by plaintiff. It was then entirely proper to prove, by a cross-examination of the plaintiff, any facts that impeached his evidence. This fact certainly had that tendency very strongly. It was therefore competent.

As to the motion on the ground of irregularities in the jury, assuming that good cause is shown in the moving affidavits for the motion, they are very fully answered by the opposing papers.

The motion is denied with ten dollars costs, and the judgment is affirmed.

Present, Hogeboom, Peckham, and Miller, JJ.