Guptill v. Damon , 42 Me. 271 ( 1856 )

Tenney, C. J.

This action is assumpsit upon the alleged warranty of the soundness of a horse, purchased by the plaintiff of the defendant. At the trial, it was a question whether the allegation was satisfactorily proved or not. The evidence consisted of confessions represented by witnesses to have been made by each party after the sale.

The Judge instructed the jury, that if they found the defendant did, at the time of the sale, say to the plaintiff, “ I sell you the horse for a sound horse, but I will not warrant him,” then, as matter of law, there was no warranty.

It was for the jury alone to determine, from the evidence, what was said and done by the parties, and therefrom, under all the circumstances attending the transaction and connected therewith, exhibited in evidence, if any such there were, to find their intention.

The meaning of the parties to a written contract, is a question of law to be decided by the Court. But when the contract alleged is not attempted to be shown by any written instrument, circumstances in proof may essentially vary the literal import of the language employed; and it is not the province of the Judge to give a construction to the language represented to have been used by the parties, as an imperative rule of law. Homans v. Lombard, 21 Maine, 308; Copeland v. Hall, 29 Maine, 93; Houghton v. Houghton, 37 Maine, 72.

The instruction given restricted the jury, in their consideration of the evidence, to limits not fully authorized by law.

Exceptions sustained, verdict set aside, and new trial granted.

Rice, Appleton and May, J. J., concurred.