52 Iowa 592 | Iowa | 1879
The plaintiff asked the court to give the jury the following instructions:
3. “If you find that in the month of October, 1878, the defendant John Reif sold or traded to the defendant Joseph McCoid one of the horses in controversy herein; that at the time of such'transaction said horse was affected with a disease called glanders; that said defendant Reif then knew that said horse was thus affected with said disease; that while said horse was thus affected with said disease, said defendant McCoid sold said horse to the plaintiff, and that by reason of said disease said horse has since died or been killed, then the plaintiff is entitled to recover from the said defendant Reif such sum as the evidence before you shall show said horse would have been worth at the time he was sold to plaintiff had he been in .sound condition.
*595 4. “If you find that in the month of October, 18.78, the defendant John Eeif sold or traded to the defendant Joseph McCoid one of the horses in- controversy herein; that at the time of such transaction said horse was affected with a disease called glanders; that said defendant Eeif then knew that said horse was thus affected with said disease; that while said horse was thus affected with said disease said- defendant McOoid sold said horse to the plaintiff; that said disease was by said horse communicated to another horse owned by plaintiff, without any fault on his part, said other horse also being described in the petition herein, and that by reason of said disease said other horse has since died or been killed, then plaintiff is entitled to recover from the defendant Eeif such sum as the evidence before you shows said horse to have been worth when he thus contracted said disease.”
The court refused to give these instructions, to which the plaintiff excepted. The court thereupon instructed the jury as follows:
1. “ In regard to the plaintiff’s claim against the defendant Eeif you are instructed that the evidence does not show that any sale, trade or negotiation of any. kind occurred between plaintiff and said defendant Eeif in relation to the horses in question, hence no recovery can be had by plaintiff against said defendant Eeif.
5. “Tour verdict as between plaintiff and defendant Eeif will be in the following form, and you are instructed to sign and return this verdict.
“ We find for the defendant Eeif as against the plaintiff.”
To the giving of these instructions the plaintiff excepted.
The appellant says that the court below acted upon the theory that this is an action only for a breach of contract, and that since there -was no privity of contract between the appellant and the appellee there can be no recovery by appellant against appellee.' It is claimed that the instructions asked by appellant, and the evidence on which they are based, present no question of contract: It is urged that the instructions asked present the question of the extent of appellee’s liability for the commission of an unlawful act, a crime against the
II. The appellee filed an amended abstract setting forth a part of the evidence on the part of the defendant. The ¡Taintiff filed a motion that no costs be taxed for this amended abstract. This motion was submitted with the case. No question is made as to the sufficiency of the evidence. The only question submitted pertains to the instructions given and refused. It is necessary to set forth only so much of the evidence as shows the pertinency of the instructions to the
Affirmed.