Way v. Martin , 140 Pa. 499 ( 1891 )

Opinion,

Mr. Justice Green:

The two assignments of error raise but one question, to wit, whether the learned court below was in error in confining the testimony as to the alleged warranty to the very day of the sale. There is no serious difference in the testimony as to the fact of a guaranty by the defendant. Several of the witnesses say he used the word “ guarantee,” and the plaintiff testified that she bought the horse on the defendant’s guaranty. But the negotiations which resulted in the sale on May 2d, commenced a few days before, when the defendant called upon the plaintiff for the purpose of selling her the horse. It was then that the representations of the defendant as to the character of the horse were first made, and the plaintiff testified that when she saw him the next time he “guarantied the horse the same as before.” After that, she met him once or twice until the transaction was closed by the sale on May 2d, at which time the money was paid. As the negotiation was a continuing one from the time of the first interview, there is no reason why the testimony in regard to the warranty at any of the interviews should be excluded. There does not appear to have been much said on the day of sale, but certainly the jury would have a right to infer that what was said by the defendant in the course of the negotiations, as an inducement to the sale, by way of guaranty, whether on the day of sale, or shortly before, was operative with the plaintiff and induced her to make the purchase. It was entirely for the jury to say whether the sale was made on the faith of the alleged warranty; and, to determine this question, they should know all that passed between the parties in relation to the terms of the sale. The very point seems to have been decided in Wilmot v. Hurd, 11 Wend. 586. The assignments of error are sustained.

Judgment reversed, and venire de novo awarded.