160 Iowa 658 | Iowa | 1913
One or more witnesses were permitted to testify to having seen the mules being used in harness on other occasions shortly prior to their sale to plaintiff and that they appeared to behave well. The admission of evidence of this character is said to be erroneous because, the issue being whether defendant warranted the team, it is immaterial how they acted before the sale. But this is taking a much too narrow view of the issues. To recover, as we have already said, plaintiff must not only establish the warranty but the breach as well. The representation, even according to plaintiff’s story, was not that the mules would never run away but rather to the effect that they were well broken, gentle, and not addicted to running away. Upon an inquiry into the truth of such statements and whether it be a fact, as plaintiff claims, that he found them wild or fractious or unsafe, proof of their conduct in harness and in the performance of work would seem, to be the best available evidence, whether their real quality or character was misstated by the defendant. In other words, while such testimony is not to be considered upon the question whether defendant did or did not warrant the team, it may be considered in finding whether the warranty, if one was given,- has been broken. The objection to its admission was properly overruled.
The instruction which counsel criticise does not profess to give the entire law of warranty applicable to the issues. It calls attention to a class of statements or representations which do not constitute a warranty, and the paragraph is followed immediately by another in which the rule as to what will be so considered is set forth in substantial accord with the rule approved in our prior cases.
The trial appears to have been fairly conducted, and, no prejudicial error being shown, the judgment of the district court is Affirmed.