Bristol v. Galway , 68 Conn. 248 ( 1896 )

Hamersley, J.

As it appears from the finding that the paper improperly given the jury was retaken by the court before it had been examined, the defendant could not have been injured by the mistake.

The horses were sold on May_25th. Upon the trial the defendant relied on the testimony of a veterinary surgeon who had, as it was claimed, at the request of the plaintiff, examined the horses while in the possession of the defendant, the following October; but the plaintiff objected “ to all the evidence as to the examination of horses sold by Bristol to Galway in May, 1895, and examined in October, 1895; the objection was sustained, and exception taken.”

On its face and unexplained, this ruling was erroneous. The offer—for the purpose of showing an unsoundness at the time of sale—to prove a subsequent examination by the surgeon made at the request of the plaintiff, and with the consent of the defendant, was in effect an offer to prove that unsoundness existed at the time of the examination, and also to prove by the opinion of the expert, that the unsoundness was of such a nature as to indicate its existence at the time of sale. Such evidence would conduce to prove a fact in issue; Hawley v. Belden, 1 Conn. 93, 99; and was admissible. Bulkley v. Landon, 2 id. 404, 407.

If the finding had been properly prepared, so as to present an intelligible view of the relation of the questions asked and excluded, to the actual condition of the evidence, it is possible that the error might have appeared to be one that did not in fact injure the defendant. The trial court seems to have assumed that the condition of the horses at the time of sale, would not be shown by any evidence offered by the defendant of their condition subsequent to that time; and the finding, which is a mere bald recital of a number of questions asked and excluded, some evidently permissible and some not, admits of no inference except the natural one that the answers which the allowable questions sought to elicit, would have tended to support the defendant’s contention.

The other errors assigned relate to the main error of the court in assuming that the evidence as to the condition of the horses subsequent to the sale would not tend to prove a breach of warranty, and do.not call for special mention.

Error and new trial granted.

In this opinion the other judges concurred.