192 Iowa 864 | Iowa | 1921
No error is assigned by the defendant as appellant, upon the submission of his counterclaim. We shall, therefore, disregard it. Appellant assigns many errors upon the submission of plaintiff’s cause of action. One assignment of error goes to the full merits of the case. The other assignments, in the main, are directed to specific errors in the instructions.
Under the evidence for the plaintiff, the defendant represented to plaintiff that the jack was two years old, coming three in the early spring; that he had already served two mares, which service had resulted in foals; that he was a "quick actor.”
For the purpose of this assignment, it is not' necessary to determine Avhether the statement here referred to should be deemed a warranty, as distinguished from a false representation. It was a representation. If the defendant kneAV it to be false, this was sufficient as a reason for overruling a motion to diree* a verdict. The defendant was himself the breeder of the jack. He necessarily knew its age. If it were found literally true that, in the preceding summer, the jack had produced two foals from mares, yet the statement thus made by defendant was false in a very important sense. That is to say, the significance of the fact that he had successfully served the mares in question aa^s materially affected by the representation as to his age. If, at the time of the service, the jack had been, in fact, but “two years old, coming three,” then such fact might reasonably haA^e been accepted by the purchaser as satisfactory evidence of the probability of his future success as a breeder and foal-getter. Whereas, if he was, in fact, at that time ‘ ‘ four years old, coming five, ’ ’ and if the two services in question represented the sum total
It is very clear, therefore, that the court properly overruled tiie motion to direct the verdict.
“An implied warranty arises where an animal is purchased for a particular purpose, and the seller knows the purpose for which it is being purchased. In such case, the law implies a warranty that the animal, so far as his qualities have been developed and are known, will be suitable for the purpose for which it is purchased. ’ ’
The first criticism directed against it is that the court injected into the case the subject of an implied warranty; whereas the petition had been predicated upon an express warranty, and not upon an implied one. It is sufficient to say at this point that the defendant, by requested Instruction No. 5, had asked the court to instruct upon the subject of implied warranty as follows:
“It is the law of this state that the rule of caveat emptor applies to the sale of animals that are present and have been inspected and selected by the buyer, and there is no implied warranty of the breeding qualities of an animal sold,. even though purchased for breeding purpose, to the knowledge of the seller.”
By Instruction 10, the trial court gave the substance of requested Instruction No. 5, with the qualification as to implied warranty which is indicated in the above quotations. The de
It is universally held that evidence of subsequent condition may be shown as evidence of the present condition. It is, of course, not conclusive on the question of present condition, but
The foregoing is, perhaps, a sufficient discussion of the detailed points. These are the controlling points in the appeal. We have carefully examined each of the many specifications of error and the discussion thereof. We discover no prejudicial error in the record. The judgment below is, therefore, — Affirmed.