64 How. Pr. 493 | N.Y. Sup. Ct. | 1882
There are two questions arising in this case, each of which must De answered in the affirmative to entitle the plaintiff to recover. There must be shown a warranty and a breach of the warranty. The first question to decide is, was there a warranty: if there was not, then that is the end of the case. The mass of evidence given upon the subject of the soundness or unsoundness of this horse, it is not necessary to consider or pass upon in this case in the view I take of the matter, having found upon the question of warranty in the negative.
It is a well established rule of law that he who has the affirmative, must establish it by a preponderance of proof, otherwise he fails in law to make out his case. Upon the question was there a warranty, the plaintiff has the burthen and must establish it by furnishing the preponderance. ■ The plaintiff swears unqualifiedly and explicitly to a warranty. The defendant as unqualifiedly and explicitly swears there was not. These two young men told their stories with apparent candor and honesty. Each, so far as anything appeared on the trial, is credible, and so far as I could discover gave his evidence with sincerity and candor. One or the other is mistaken. The defendant’s statement in regard to what the conversation was at the time of the purchase is not in any way corroborated. Is the statement made by the plaintiff corroborated % If it is, from what has been stated above, he is entitled to recover, providing there was a breach. I find no
Judgment ordered accordingly.