Dunbar v. Briggs

• Decision Date: 15 September 1885
• Parties: JOHN J. DUNBAR, PLAINTIFF IN ERROR, v. B. B. BRIGGS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 449

18 Neb. 94

JOHN J. DUNBAR, PLAINTIFF IN ERROR, v. B. B. BRIGGS, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 15, 1885

ERROR to the district court for Johnson county. Tried below before DAVIDSON, J.

AFFIRMED.

A. H Babcock and A. Hardy, for plaintiff in error, cited: City of Crete v. Childs, 11 Neb. 256.

J. E Bush and Hurley & Crane, for defendant in error, cited Bryant v. R. R. Co., 63 Iowa 465. Chittenden v. Evans, 48 Ill. 52.

OPINION

MAXWELL, J.

This cause was before this court in 1882, and is reported in 13 Neb. 332, the judgment of the court below being reversed and the cause remanded. After the cause was remanded application was made to the district court to change the place of trial, and the cause was thereupon transferred to Johnson county, and a trial had, which resulted in a verdict and judgment for the defendant in error.

The action is brought upon a promissory note, of which the following is a copy: "$ 900.00. Beatrice, Neb. July 28, 1879. Sixty days after date I promise to pay to order of B. B. Briggs, nine hundred dollars, at the office of Smith Bros., Bankers. Value received. John J. Dunbar." The defendant below (plaintiff in error) in his answer admits the making of the note, but alleges that it was given for the purchase price of thirty-seven Texas horses and mares; that Briggs warranted them to be sound and free from disease, and that the defendant purchased the same on the faith of the warranty; that all of said horses were diseased at the time of said purchase with a disease known as Texas itch, which fact was wholly unknown to the defendant; that the defendant, relying upon the warranty, turned said Texas horses in with his herd containing more than one hundred horses, and the Texas horses being affected with said disease communicated the same to the entire herd; that all the horses purchased from the plaintiff died with said disease and about sixty-five head of the other horses in said herd. The defendant therefore prays for judgment on his counter-claim for the sum of $ 30,000.00. The reply is a general denial.

The first error relied on is, that the verdict is not sustained by sufficient evidence and is contrary to law, and the second, third, and fourth assignments are to the same effect, and will be considered with the first.

It may be conceded that the testimony shows that Briggs warranted the horses to be sound; and in our opinion the clear weight of the evidence shows that they were sound at the time of the sale to Dunbar. The sale was made the latter part of July, 1879, and it is pretty clear that none of the horses in question were affected with the disease until two or three months afterwards. The witnesses disagree as to the exact time, and it is not material in this case except as showing that the horses were not diseased when Dunbar purchased them.

The plaintiff below not only introduced evidence tending to prove that the horses were sound when sold to the defendant, but went further, and introduced testimony tending to prove that the horses in controversy caught the disease from another herd about...