| Minn. | Jun 20, 1891
The assignment of error, based on an instruction of the court below to the jury, is not well founded, because the exception was not such as to direct the attention of the court to that instruction. The defendant also asked the court to instruct the jury that, if the maker of the note and mortgage was solvent at the time of the trade and thereafter, the plaintiff cannot recover, and the court refused to so instruct. The false representations sued upon were not as to the solvency of the maker of the note, but as to the situation, condition, and sufficiency of the real estate mortgaged as security for the note. The cause of action depended, not on the mailer’s solvency or insolvency, but on the truth or falsity of the representations as to the mortgaged property. There was evidence to justify a finding that the representations were made, that plaintiff relied on them, and that they were false. That made a cause of action and the right to recover nominal damages at least. If the plaintiff could collect the note, or any part of it, from the maker, that would go to the measure of damages, but would not prevent a cause of action. A note against a solvent man is more valuable, for all the purposes which the holder may have occasion to make of it, by reason of being secured by mortgage on adequate real estate. The request, therefore, went too far, and was properly denied.
As the case was one for the jury, we need refer to only one other of appellant’s points. It is that the court erred in excluding evidence offered by him that there was an oral warranty of soundness of the horse he took in exchange for the note and mortgage. There was a written warranty in these words: “I have this day sold and delivered to Eichard Neill, of Green Prairie, the bay horse King Bill,
Order affirmed.
Note. A motion for a reargument of this case was denied July 1, 1891.