Tanner v. Parshall

Hunt, J.

—This case was eminently one for the jury. We have nothing to do with the decision. We accept it as the correct determination of the disputed facts before them. The legal proposition before us is quite sinqie. We are not called upon to decide whether the entry by the plaintiff of the sale of the horse to the defendant in the plaintiff’s book, was a part of the res gesta, no/ are we to decide whether the entry alone would have been competent evidence. Here the offer to read the entjf was accompanied by the offer, also, to prove that the entry was subsequently read to the defendant, and tha he admitted its correctness. That a statement by the plaintiff to the defendant, whether verbal or written, chffging the latter with the purchase of a horse, at the agreed price of $500, which statement was then assented to be the defendant, is competent evidence against the 1/tter, would seem to be too plain a proposition for dishssion. The offer, as made, was proved, and was corroborated by the defendant, so far as that he admitted that the statement was read over to him. -He denied that he admitted its correctness, or promised to pay it.

The charge to the jury was upon the same subject-matter, and in reference to the whole of the same.. I think there could have been no misleading of the jury, and no misunderstanding by them of the questions before them.

The judge further charged the jury that in determining whether the defendant bought the horse, and agreed to pay $500 for him, they had no right to take into consideration the actual value, or the unsoundness of the horse, as a circumstance bearing on that question. If the jury had been engaged in deciding whether the defendant had made a good bargain in purchasing the horse, such evidence would have been material. So if there had been inquiry whether there had been a breach of an alleged warranty of soundness, the evidence referred to would have been important. But it was entirely immaterial upon the question whether the defendant had purchased the horse, or had received him from the plaintiff to sell on his account. As a legal proposition it could have no tendency to establish either a sale or an agency. There was no error in the instruction to the jury.

Heither was there any error in this instruction : that if. the defendant heard the remark which the plaintiff’s daughter testified that the father made to her, “that he had sold Billy,” and did not deny it, it was competent evidence. The presence of the parties there, and the taking away of the horse by the defendant, would justify the jury in applying the remark to the horse in question.

The judgment should be affirmed.