Thе case here, shortly stated, is about this: The plaintiff sold the defendant fifty-five head of mules for $4,250, of which amount the latter paid $4,000; the balance he refusеd to pay, and to recover that balance this action was brought. The defense interposed by the answer was a general denial, to which wa,s аdded two counterclaims — one charging fraudulent representation as to the age and soundness of a certain number of the mules, on account of which $500 damages were sustained; and the other charging a breach of warranty as to age and soundness of said mules and on account of which dаmages in the further sum of five hundred dollars were sustained. The plaintiff had judgment in the trial court for $263.75, to reverse which the defendant appealed.
I. The first ground on which the defendant by his appeal questions the judgment is, that the trial court erred in its action refusing, on his motion, to suppress the depositions taken by plаintiff and filed in the cause. The record discloses that the law firm of Pipkin & Swink reside at Farmington, St. Francois county, in this State; that said firm was entrusted by plaintiff with the collection of his said claim against defendant, and that it thereupon wrote defendant a letter advising him of that fact and that unless said claim was paid at once it would bring suit thereon against him; that thereafter a suit'was brought by said firm for plaintiff against defendant in the circuit court of Boone • county, in this State,'where dеfendant resided. It appears that to the plaintiff’s petition was signed- the
Under section 2897, Revised Statutes, a notary public in taking depositions acts as a temporary substitute for the court in which the cause is pending. .Proffat on Nоtaries, sec. 31. It has been held that in taking depositions he acts in a judicial capacity in determining whether or not the witness is privileged from answering cеrtain questions, etc. Bank v. Conway, 1 Hughes (U. S.) 37; Wassen v. Conner,
Mr. Pipkin while taking said depositions in his capаcity of notary public was acting for the court as its substitute — acting in a quasi-judicial capacity; and he was at the same time acting as the substitute for the
It is true that so far as any provision of the statute relating to the taking of depositions extends, the deрositions were not improperly taken. "We do not think that "though this is so, they can be read in evidence. It is easy to see that depositions may be supрressed for many reasons other than that they were not taken in the manner required by statute. The motion to suppress should have been sustained.
II. The defendant complains that the trial court further erred in giving for the plaintiff his instructions number two and three. The defenses pleaded, as have already been stаted, were those of deceit and breach of warranty. The plaintiff’s instructions told, the jury unless they found from the evidence certain facts therein specified that there could b'e no warranty and its verdict should be for the plaintiff on both of the defendant’s counterclaims.
There was evidence sufficiеnt to carry the case to the jury on the issue of deceit in the sale of the mules, yet under this instruction if it was found by the jury that there was no warranty, that then it must find for plaintiff on both counterclaims pleaded. They ignored the deceit pleaded in the first count of the answer; or, perhaps more accurately speaking, withdrew that defense from the consideration of the jury. The
There may be a warranty with deceit, or deceitful representations without a warranty. If the jury found the defense of deceitful representations without fraud sustained by the evidence, then the defendant was entitled to recoup from the contrаct price the amount of this difference between the value of the mules to which the deceitful representations related, had they been suсh as represented to be, and their value such as it was shown to really be. Danforth v. Crookshanks,
The plaintiff’s fourth instruction told the jury that, if the defendant had the mules caught up and examined one by one it' wаs a circumstance that it might take into consideration -in determining whether or not the said mules were in fact warranted .to be sound and from five to eight yeаrs old. ' This, if for no other reason, was "improper bécause it singled out particular facts ■ and directed the. attention of the jury to them; and thereby informеd it that the portion' of the evidence so referred to had a .tendency to establish a controverted fact in the case. These facts wеre proper for the consideration of the jury-along with the other evidence in determining the issue of fact. The instruction was so manifestly a comment upon the evi
It results that the judgment will he reversed and cause remanded.