Tibbetts v. Murray , 114 Me. 550 ( 1915 )

The plaintiff purchased a horse of the defendant in September, 1911, which animal, plaintiff says, was expressly warranted to be free from disease. This horse was brought to plaintiff’s stable where it was kept during' the subsequent fall, winter, and spring, with other horses owned by the plaintiff. In January, 1912, plaintiff also took to his stable, and kept with his other horses, two horses referred to in the record as the Cyr horses. After the advent of the Cyr horses a disease known as glanders became prevalent among plaintiff’s drove which resulted in the death of some, among which was one of the Cyr horses, and by order of the authorities the killing of others, among which was the horse purchased of defendant, this animal being killed after the death of the Cyr horse. Plaintiff thereby sustained loss, to recover which he brought suit, claiming that the horse purchased of the defendant had the disease when purchased and communicated it to his other animals. Among other elements of defense it was strenuously urged that the Cyr horse, and not the one purchased of the defendant, infected the drove and so did the damage sustained. The verdict was for plaintiff, and upon the usual grounds the defendant asks that the verdict be set aside and a new trial granted. A motion was also filed asking for a new trial on the ground of newly discovered evidence.

We have devoted much time to a careful study of the new evidence, as well as to that offered at the trial. As a result of that study, we are convinced that justice requires the entry to be,

Motion sustained. New trial granted.