Mulliken v. Boyce , 1 Gill 60 ( 1843 )

Archer, J.,

delivered the opinion of this court

By the contract between the parties, the representation of the plaintiff was gratified by the adduction of the breedei’s certificate that the mare was thorough bred. The prayer, therefore, of the defendant, which called upon the court to say that the plaintiff .could not .recover unless the jury believed the mare was thorough bred, could not be gratified; the plaintiff being entitled to recover the full amount of the note, if the jury should believe the plaintiff had produced the breeder’s certificate, according to the terms of the contract. The prayer was wrong in another respect; for had the plaintiff failed to comply with his representation, he would still have been entitled to recover the value of the mare actually sold, as an animal not thorough bred.

In the instruction given by the court, the only error we perceive, is in their instructing the jury that the plaintiff could alone recover, upon the production of the breeder’s certificate. If the plaintiff failed to produce evidence of this, still he was entitled to recover the value of the animal, as one which was not thorough bred. But the defendant is not prejudiced by this error; on the c.ont,rary it niight ha.v.e proved beneficial to him, and we cannot therefore reverse the judgment of -th(e court in this respect.

We concur with the court below in the opinion by them ■expressed in the second bid of exceptions,.

The witness is, in effect, asked to speak of the contents of a paper writing or document, without its production, for although he is asked whether, from his knowledge of the pedir gree of the mare, he considered her to be a thorough bred •mare, yet the question has manifestly reference to the pedigree detailed in a paper which he is asked if he had seen, as the foundation for the question in relation to his opinion of the pedigree.

We also think the court were right in refusing to permit the evidence of the contents of the certificate to be given in evidence to the jury, as a proper foundation had not been laid for the introduction of such evidence.

JUDGMENT AFFIRMED.