Gates v. Moore , 51 Vt. 222 ( 1878 )

The opinion of the court was delivered by

Bedfield,. J.

This action is assumpsit upon a warranty by defendant that a horse purchased of him by the plaintiffs “ would work well in a team in drawing heavy loads,” when in fact the horse did not possess those qualities, and that was then well known to the defendant.

I. The plaintiff bought the horse in question by exchange of a certain colt and a note against one Adams for 42.50. It is not claimed that the contract proved by the evidence varied from that alleged in the declaration ; hence it would seem that it was altogether immaterial whether there was a parol condition in the'sale of the horse to Ad.ams that he might return the horse to the plaintiff in payment of the note. Such parol condition was held in Isaacs v. Elkins, 11 Vt. 679, to be void and unavailing as a defence to the note. And such proof could have no tendency to show that defendant did not warrant the horse sold, as averred in the declaration.

II. The evidence that some pretended horse doctor or horse-trainer said to the plaintiffs that he would subdue the wickedness in this horse, and convert him from his evil ways, for $6, was not legally admissible. It was mere hearsay evidence at best; besides, we think that whether such evil propensities in a beast against which this defendant contracted, are innate and incurable, or otherwise, was an issue not involved in the case.

III. The defendant, against plaintiffs’ exception, was allowed to prove that the horse was a good driving horse, and therefore valuable. In Wing v. Chapman, 49 Vt. 33, which was substantially like this case, the Supreme Court held that such evidence was not admissible, and rebuked the practice of creating by inadmissible evidence unnecessary issues, and by needless discussion dividing and distracting a jury. The enquiry in this case was, how much the value of the horse would have, been enhanced if he had possessed the qualities for which the plaintiff bargained, and which the defendant warranted him to possess ? What the horse was worth for other uses was not material, as was expressly decided in that case. But in this case the plaintiff had stated what the horse was worth now, and what he would have been worth if he had been as warranted, as a mode of computing the damage he had suffered from the want of the stipulated qualities in the horse. And as the court allowed the defendant, in its discretion, to repel and disprove what the plaintiff had testified to without objection, the case, for that reason alone, should not be reversed.

Judgment reversed, and cause remanded.