102 Wis. 92 | Wis. | 1899
1. The first, second, and eighth assignments of error raise generally the question of the sufficiency of the evidence to support the verdict. The defendant contends that by the terms of the note the sale was conditional and executory; that payment of the same constituted an acceptance of the horse and a waiver of the breach of the warranty, which breach, he contends, the answer to the third question finds was then known to plaintiff.
It is unnecessary to decide whether the giving of the note in question transposed the transaction into an executory sale, so that, as defendant claims, the acceptance of the horse did not occur until the payment of the note; for, even if defendant’s full contention on that point be conceded, it does not appear that plaintiff, at the time of such payment, had knowledge of the defect or unsoundness which constituted the breach of express warranty, which defect, according to all the evidence, was not patent and obvious. True, it is found by the special verdict, in answer to the third question, that plaintiff did know that the horse was A^ery sick, but that question was put and answered by the court, and the appellant has brought up the court’s own construction thereof, namely, that such knowledge was only of sickness consistent with a cold, and that neither the evidence nor said special verdict shows any knowledge of the existence of any other disease or unsoundness. We must presume, unless the contrary clearly appears, that the trial court correctly understood and construed his own acts. We also think the court was right in concluding there was not evidence to support a finding that the plaintiff kneAV of
2. The third and fifth assignments of error present an objection to the fourth question of the special verdict: “Did the defendant sell and the plaintiff buy said horse for a sick horse, the plaintiff taking his chance ? ” This is objected to as compound, and it is claimed that the first part of the question could not have been answered otherwise than “Yes.” This contention is probably correct, but serves as an answer to the objection to the question; for conceding, as all the evidence shows, that the plaintiff purchased the horse knowing it was sick, but supposing it to be sick only with a cold, the material part of the question was whether he agreed to as-.sunae the risk of such sickness as the horse might have. The question is therefore single, and a negative answer thereto by the jury necessarily disposes of the contention on that •branch of the case against the defendant.
3. The fourth assignment of error raises only the question whether there was any evidence to go to the jury of the making of a warranty that the horse was sound and well, except for a cold. There is abundant evidence at least tending to prove that there was such oral warranty. The defendant contends, however, under both the fourth and the seventh assignments of error, that the signing of the note above referred to was a reduction of the contract to writing, -so that any evidence of a parol warranty was inadmissible. This contention cannot be sustained, for it is obvious that the note does not in terms purport to state the whole contract, and the evidence of the transaction makes still clearer
We discover no error in the record.
By the Court.— Judgment affirmed.
