Connell v. McNett

• Decision Date: 19 May 1896
• Citation: 67 N.W. 344,109 Mich. 329
• Court: Michigan Supreme Court
• Parties: CONNELL v. MCNETT.

67 N.W. 344

109 Mich. 329

CONNELL v. MCNETT.

Supreme Court of Michigan

May 19, 1896

Error to circuit court, Ottawa county; Philip Padgham, Judge.

Assumpsit by Catherine Connell against Jacob B. McNett to recover damages for breach of warranty on the sale of a horse. There was verdict and judgment for plaintiff, and defendant brings error. Affirmed.

R. W. Boynton and Walter I. Lillie (Stephen H Clink, of counsel), for appellant.

George A. Farr, for appellee.

MONTGOMERY J.

Plaintiff recovered a judgment in an action originally brought in justice court to recover damages for a breach of warranty on a sale of a mare. The mare was purchased by the plaintiff for a driving mare, and the price of $225 in cash paid. Plaintiff offered testimony tending to show that she incurred an expense of $48 in having the mare treated, and that the care and keeping of the mare was worth $10 per month, and that she had been so lame from the time when she was first delivered to her that she could not be put to any use and that the lameness was the result of a permanent disease. The record contained a large number of assignments of error, but a discussion of a few of the alleged errors will dispose of all.

1. The bill of particulars in the justice court contained three items: The price of the horse, $225; paid for medical treatment, $50; care and keeping of the horse, $50. On the trial the plaintiff was permitted to add an item of expense for taking the mare to Grand Rapids, where she was treated. This was objected to as a surprise, and, in addition, the claim is made in this court that the issue presented in the justice court was enlarged. We do not consider either objection sound. The cause of action in the justice court was a breach of warranty. The item added was within the declaration, and did not introduce a new cause of action, and the nature of the case was such that it could have been met without an adjournment.

2. The defendant was asked on the stand if he had undertaken to deceive the plaintiff. The action was not for deceit, but in assumpsit, and, as defendant had already testified that he did not know that the mare was lame, a negative answer to this question would in no way have tended to negative the fact of a warranty; for, if he did not know the mare to be lame, a statement that she was sound, would not show any attempt to deceive.

3. Numerous assignments of error rest upon a proposition of defendant to show that after the trial in justice court, and on the day before the trial in the circuit court, defendant had, through his wife, offered for the mare the $225 paid by plaintiff and the doctor's bill. In answer to a question by the court defendant's counsel at first stated that the proposition was one of compromise. After the testimony was ruled out on this statement, counsel insisted that the offer was admissible to show value. This was accompanied by an offer to make the proffer good, and counsel on his own responsibility saw fit to make an offer of $100 for the horse in court, and in the presence of the jury. The patience of the trial judge with this attempt to turn the court room into a horse market was certainly as great as the parties attempting it had any right to expect, and the remark of the court that the trial would have to go on, and could not be interrupted with horse-track dickers while the suit was being tried, was entirely justified.

4. We think that there was no error committed in receiving the testimony offered by plaintiff to show the value of the mare. An examination of the record shows that the witnesses possessed a sufficient knowledge...