Whitney v. Sutton, 10 Wend. 411

Whitney v. Sutton

10 Wend. 411 | N.Y. Sup. Ct. | 1833

By the Court,

Savage, Ch. J.

The return of the justice shews what questions were raised before him; they were both of law and fact. By the statute the court of common pleas are authorized to review (he whole proceedings in the court below, and to decide according to the justice of the case, disregarding matters of form, which do not affect the merits. With *413the questions of fact which were disputed this court has nothing to do ; upon a writ of error we can correct errors of law only. The only question of law raised during the trial was whether the plaintiffhad failed to support his action by proof, and should therefore be nonsuited. On that question the justice certainly decided correctly. Whether the words spoken by the defendant were an assertion or an opinion, was a proper subject for the consideration of the juiy. If they amounted merely to the expression of an opinion of the defendant, then the action could not be sustained; if, on the contrary, they were intended as a representation of the soundness of the horse, and the plaintiff relied upon it as such, then they amounted to a warranty, though the word warrant was not used ; and as to the breach of the warranty, the evidence was strong that the lameness of the horse was occasioned by some other cause than the scratches. The justice therefore was correct in refusing to nonsuit the plaintiff.

It is insisted now that there was a variance between the declaration and the evidence. It is a sufficient answer to that objection, that it was not raised before the justice, when the defect in the proof, if any, might possibly have been supplied.

On what point or for what cause the judgment of the justice was reversed does not appear, and I am at a loss to conjecture ; for the verdict of the jury was well warranted by the evidence. But whether the decision was according to the right of the case, was a proper question to be reviewed by the common pleas, and is not a proper question for review by this court. There was no error in law in the proceedings before the justice, nor does any appear on the record in the proceedings or judgment of the common pleas. If the latter court have misjudged upon the facts, this court has no power to correct the error. As this writ of error is brought to review the judgment of the common pleas, and as that court may have reversed the justice’s judgment for an error in fact, we cannot say that they have erred in deciding any question of law, and must therefore affirm their judgment.

Judgment affirmed, with single costs.