5 Neb. 219 | Neb. | 1876
There are several errors formally assigned, but in substance they amount simply to this, that the verdict is not sustained by sufficient evidence. The action in the court below was on a promissory note, given by the plaintiffs
An examination of the record reveals- considerable conflict in the testimony. Several witnesses called by the defense testified, that in their opinion the horse was diseased as charged. "William Houck was the first witness who swore that the disease was glanders; but he did not see the horse until the spring of 1870, more than a year after the sale took place. Ezekiel Pettit saw the horse in Camden a day or so after the sale; and he swears that he then noticed a discharge from the nostrils and “ remarked that the horse had the glanders.” Isaac "Vose, who is a brother in-law of Blackburn, saw the hoi’se about the same time he was noticed by Pettit in 1868, and he, too, was of opinion that the disease was glanders. Another witness, by the name of Adams, called for the defense, was of the opinion that the horse was afflicted with the glanders. This constituted the material testimony adduced on the part of the defendants. On the other hand, the plaintiff testified on her own behalf, giving an account of the transaction by which she sold the horse to Blackburn. She denies that she had any knowledge of the horse being unsound at the time, or that she made any recommendation concerning him. She also testifies that no claim was ever made to her by the defendants that the horse was diseased in any manner whatever. Hoses Wilson, a witness called on behalf of the plaintiff, swore that he knew the horse at the time of the sale, and afterwards frequently saw Blackburn breaking prairie with him. He says that
If we look alone to the languagé used by the several witnesses as to whether the horse actually had the glanders, there would seem to be a pretty clear preponderance in favor of the defendants (plaintiffs in error). But there are several circumstances entitled to considerable weight in the decision of this case. The fact that this horse was taken by Blackburn, and worked by him continuously on his farm for considerably over a year without any complaint, or so much as even a suggestion to Mrs. Ostrander that anything was wrong with him, is a very strong circumstance against the theory of the defense. It seems very strange, indeed, that if Blackburn had supposed, or had reason to believe, that the horse was affected with so fatal a malady as that of glanders is well known to be, he would have kept on using him for so long a time without so much as complaining even to his vendor. Under such circumstances, this sort of defense should be closely criticised by a court and jury; and unless established very clearly, it ought not to be permitted to prevail. "When the purchaser of an article ascertains, or has reason to believe, that he has been deceived by the fraudulent representations of his vendor, common prudence would seem to dictate that he make it known, and notify the seller either of his desire to rescind the contract, or that he will claim compensation for. his loss. Indeed, it is but just to the vendor that this course be pursued. But where, as in the case before us, the property is purchased on a credit, and no word of complaint is heard for more than a year after the sale, while at the same time the property is kept in constant use, this sort of defense ought to be closely scrutinized.
This is a case of very conflicting testimony, one wherein all the surrounding circumstances are hostile
Judgment aeeirmed.