Kelley v. Downing , 69 Vt. 266 ( 1896 )

Start, J.

The plaintiff claimed that he exchanged horses with the defendant on condition that the horse- received of defendant would work on a milk cart. The defendant claimed that the exchange was absolute. On this issue, what'the plaintiff thought before the exchange about his being able to handle the horse was immaterial; and the testimony was properly excluded. For like reason, the expert evidence offered by the defendant to show the effect of a runaway upon a horse’s disposition was properly excluded. So far as appears from the exceptions, the only question about which the parties were at issue was whether the exchange was conditional in the respect claimed by the plaintiff; and the testimony offered and excluded could have no bearing upon this issue. It not appearing that there was any issue to which this testimony was pertinent, error does not appear. The plaintiff having testified that the defendant suggested that the horse be used with another, it was not error to allow him to testify that he did so, and the horse kicked and balked when so used. The juror, Ellis, was not legally disqualified by reason of the talk he had with the plaintiff; and, while the court, in its discretion, could have discharged the panel and called another, its declining to do so was not error.

Jtidgment affirmed.