Rand v. Bordo , 85 Vt. 97 ( 1911 )

Watson, J.

The bill of exceptions states that the declaration alleges that the defendant, knowing a certain brown mare to be unsound and infected with a certain disease, by warranting said mare to be sound and free from defects, and by concealing certain defects and unsoundness, fraudulently and deceitfully induced the plaintiff to make the exchange, and thereby deceived and defrauded the plaintiff.

It appeared that it was an even exchange; and the plaintiff’s evidence tended to show that the mare he received of the defendant, if sound and free from defects as defendant represented, would have been worth substantially as much as the horse which the plaintiff gave in exchange for her. Under objection and exception the plaintiff was permitted to show the kind and value of the horse he let the defendant have. In substance the objection was, that the evidence was immaterial. But such evidence was material, as bearing on the trade made. If the mare, in consequence of her unsoundness and defective condition, was of much less value than the horse, and if she would have been substantially of the same value as the horse, had she been sound and free from defects, it is more likely that the defendant made representations concerning her as the plaintiff claimed, and as his evidence tended to show. Bedell v. Foss, 50 Vt. 94; State v. Donovan, 75 Vt. 308, 55 Atl. 611.

Subject to the same objection, a witness for the plaintiff gave testimony showing the defective condition of the mare on an occasion when she was being driven by the defendant’s son. The exceptions do not show when this occasion was. Error does not appear.

At the close of the evidence the defendant moved for a verdict on seven different grounds stated, each pertaining to the evidence. As a part of the third and fourth grounds, each, the motion states, “The plaintiff’s testimony is referred to.” This reference to the testimony, — and none other is shown by the bill of exceptions, — is only by the defendant in his motion, and such a reference does not bring the testimony before this Court. Sowles’ Admr. v. Sortwell, 76 Vt. 70, 56 Atl. 282; Royce v. Carpenter, 80 Vt. 37, 66 Atl. 888. The evidence is therefore not before us, and the exception to the overruling of the motion is not considered.

The defendant excepted to the overruling of his motion in arrest of judgment, but since neither the dcelaration nor a copy thereof has been furnished us, this exception is not considered.

Judgment affirmed.