34 Barb. 367 | N.Y. Sup. Ct. | 1860
The justice having found, upon conflicting evidence, that the defendant made the warranty charged in the complaint, and the amount of damages the plaintiff sustained by the breach of" such warranty, these questions cannot be reviewed by us upon this appeal.
The only question before us is, whether upon the evidence there was a breach of the warranty, for which the plaintiff was entitled to recover; in other words, whether the warranty applied to the defects which it was proved the horses sold to the plaintiff had, at the time of such sale. It is not pretended by the defendant bnt that the horses had ring-bones on their legs, but he insists that they were so plain to be seen that the plaintiff must have seen them, and hence that his warranty of soundness did not apply to them. If the defects were thus visible, the law is that a general warranty of soundness does not reach them.. (Chit, on Cont. 456; Pars, on Cont. 459, note i.) The first question then is one of fact; were the ringbones visible to an ordinary observer. P
The plaintiff says that after the trial, and after the defects were pointed out to him, he saw them. He discovered on the sorrel horse a bunch above the hoof, on each forward hoof, on the forward part of the ankle. The roan horse had a large bunch on his fore foot, in the same place. This discovery, he says, was made in about an hour after the trade.
The county court, in rendering the judgment on the ground that the defects were visible, and therefore not reached by the warranty, treated the question as one of law merely. In this I think the county judge erred. It is probably a mixed question of law and fact; and is, therefore, so far as the fact is involved, within the rule that forbids the reversal of the judgment of a justice rendered on conflicting evidence.
For these reasons, I am of the opinion that the judgment of the county court should be reversed, and that of the justice affirmed.
Judgment reversed.
Allen, Mullin and Morgan, Justices.]