| Mass. | Sep 15, 1873
The evidence offered by the plaintiff and excluded by the court could only be considered material so far as it had a tendency to contradict the testimony of the defendant. But as the plaintiff’s claim was founded upon a contract and not upon deceit, the testimony of the defendant that he did not know the horse’s age was irrelevant to the issue. It is not certain that information from other persons, as the result of their examination, that the horse was twelve years old, can be said to furnish knowledge of the fact. He was not bound by their examination, and may have had a different opinion himself. But the proposed contradiction was upon an immaterial point, and the court had a right to exclude it for that reason.
There is the same difficulty about the proposed evidence that he had once offered to warrant the horse. He had testified not only that he did not make the warranty declared on, but that he never warranted and never would warrant any horse. Even if proof that he had, at some other time or in some other negotiation, offered to warrant the horse, could be said to be in contradiction of this testimony, it would be upon an immaterial point. The inquiry was not as to his general practice or what he did on Borne other occasion, but as to this particular transaction.
Exceptions overruled.