Driscoll v. Duryee ( 1872 )

Mr. Justice Thornton

delivered the opinion of the Court:

The evidence is conflicting, and the verdict must be regarded as conclusive as to the disputed statements of witnesses.

The refusal of the court to give the second and third instructions, in behalf of appellant, is assigned as error.

They were defective, and should not have been given. They were uncertain, indefinite, and would have misguided the jury.

The purchaser was bound, according to the testimony, to return the horses, either within thirty days, or within a reasonable time after the trade.

Both instructions informed the jury that, if the offer to return was made for the reason that the horses were unsound, or not true in harness, and the offer was refused, then the purchaser was discharged from any further performance. The offer might have been made for that reason, and yet it may not have been true. The hypothesis of unsoundness and unwillingness to'work, should have been submitted as a fact.

The instructions were incomplete without the additional words, substantially, “ and that the breach of warranty, or lameness, actually existed at the time of the offer to return.” Judgment affirmed.

Judgment affirmed.