147 Pa. 305 | Pa. | 1892
This was an action brought for a breach of warranty in the sale of a horse. The learned judge below directed a nonsuit, for the reason that the evidence was not sufficient to show a warranty. In this we think he was right. At the time the transaction was closed, and the money paid, there was no warranty. On the contrary, the plaintiff said to the defendant: “I have nothing to show that you warrant this horse as you represent him,” to which the defendant replied: “ The horse is just the same as when you drove him on Monday.” This is very far from being a warranty. It was, at most, an assertion that the horse was in the same condition as on the previous Monday, and there was nothing in the case to show that it was not true. There was evidence of previous statements having been made to the plaintiff, that the horse was kind, sound and gentle, but the defendant did not warrant him to be so. It was
We have quoted this extract from the opinion in McFarland v. Newman, because it bears upon another point. It was contended, in the case in hand, that the question whether there was a warranty should have been submitted to the jury. As the warranty, if any, is to be found in the oral testimony, it would undoubtedly be the province of the jury to determine it, if there was a conflict of evidence. Had the language used been equivocal; had the one party asserted a warranty, and the other denied it, the matter should have been submitted to the jury. But the plaintiff’s own testimony showed there was no warranty. There was the mere assertion of a fact, which
Judgment affirmed.