Chase v. Nichols, 9 N.Y.S. 878

9 N.Y.S. 878 | N.Y. Sup. Ct. | 1890

Barnard, P. J.

The cause of action was fully proven. The complaint averred a general and a special warranty of a horse upon a sale by defendant to plaintiff. The proof showed that the plaintiff examined the horse in the presence of defendant. The defendant called the attention of the plaintiff to a defect apparent on the hind legs of the horse, which he said was natural; that the horse “ was born that way.” The sale was not concluded at that time. A day or two after, one Casno, an employe of the defendant, brought the horse to plaintiff. The plaintiff declined to buy on account of the defect in the hind legs; “that he was afraid the joints were weak.” Casno thereupon warranted and agreed that, if the horse went lame on account of this defect, it should be no sale. The price was agreed upon, and the plaintiff took the horse, which went lame from the defect within the six months.

It was improper to receive evidence of the agent, Casno, in proof of his own agency. Starin v. Genoa, 23 N. Y. 439. The defect was cured, however, by the other evidence. The defendant was proven to have said that Casno was authorized to warrant against the curb, which the defect was said by experts to be. The defendant was told what Casno had said about warranting against the defect, and did not deny his authority. The defendant, when asked to make reparation, said he would inquire of Casno what he had undertaken on the sale, and see the plaintiff in respect to a settlement. All this established the warranty. It was an erroneous ruling against the defendant to repeat the questions put to defendant, whether had authorized Casno to warrant against the lameness, or to warrant at all. The ruling was cured, and the defendant was permitted to detail the instructions he gave to Casno.

The measure of damage was the depreciation in value by means of the defect. This would be ascertained by proof of the value of the horse as he was, and as he would have been if the defect did not exist. Such proof was given by witnesses who knew the value of horses, as appeared by their testimony. The judgment should therefore be affirmed, with costs.