Davis v. Elliott

81 Mass. 90 | Mass. | 1860

Dewey, J.

It was competent for the defendant, under the answer filed in this case, to show in defence that the consideration of the note was a sum agreed to be paid in exchange of horses, and that such bargain for an exchange was induced by the false and fraudulent representations of the plaintiffs, or an authorized agent acting on their behalf, and thereby furnish a legal ground for a deduction from the amount of the note for the difference in value of the horse received in exchange from what the same would have been had the representations thus made been true. Upon this issue it would seem, from the bill of exceptions, that much evidence was introduced by the parties, and of a somewhat contradictory character. But no question is before us as to the weight of this testimony, the same having been submitted to the jury, who have passed thereon. The only inquiry is therefore whether any legal exception can be taken to the rulings of the court.

The ruling of the court upon the proposed defence of having offered to return the horse and rescind the contract, it is not necessary to consider, as the finding of damages in favor of the plaintiffs to any amount shows that the jury did not find the defence of a rescinding of the contract to be sustained.

The instruction to the jury, under which the jury made the deduction from the note, was unexceptionable. The objection now urged against it is, not that it was not correct, so far as stated, but it is said that the court ought to have also instructed the jury that, if they were satisfied that the condition of the horse was such that the defendant by the exercise of ordinary care and vigilance might have discovered the defects of the horse, he would not be entitled to rely upon the defence set up by him. The answer to this is, that the plaintiffs asked no such ruling of the court as they now say should have been given. If the evidence, in the opinion of the plaintiffs’ counsel, was such as called for the application of this rule, it was for the plaintiffs to ask instructions to that effect. Not having done so, the verdict is not be set aside for want of such instructions.

As to the evidence and ruling upon the question of damages, we perceive no grounds for any exception. The inquiry put to the defendant as a witness was properly put to him, as, from his connection with the subject of controversy, he might well be taken to have personal knowledge of the real condition of the horse at the time of the exchange, by what he had seen and known to be developed since. If however it may be taken that the inquiry related to the case as disclosed by the evidence on the trial, then we must suppose the answer only coextensive with the question, and to have been so understood by the court and jury. The value of the several horses at the time of the sale was a proper subject of inquiry in reference to the damages.

Exceptions overruled.