Rogers v. Ferris

• Decision Date: 19 November 1895
• Citation: 64 N.W. 1048,107 Mich. 126
• Court: Michigan Supreme Court
• Parties: ROGERS v. FERRIS.

64 N.W. 1048

107 Mich. 126

ROGERS v. FERRIS.

Supreme Court of Michigan

November 19, 1895

Error to circuit court, Grand Traverse county; Roscoe L. Corbett Judge.

Action of replevin by Franklin Rogers against Egbert F. Ferris. There was a judgment for plaintiff, and defendant brings error. Affirmed. Foster & Crotser, for appellant.

Turner & Gates, for appellee.

GRANT J. (after stating the facts).

Plaintiff's right of recovery depends upon whether a warranty was given and whether the mare was sound, according to its terms. Errors are assigned upon the testimony and the charge of the court.

1. It was not error to permit the plaintiff to testify that he relied upon the warranty in making the purchase. If he had not relied upon it, he could not have recovered.

2. One Schubert, a witness for plaintiff, testified that about the middle of July he noticed a puff on the right hind leg of the mare; that it looked like a bog spavin; that he was raised on a farm with horses, had been a blacksmith 15 years, and that he did not think such a spavin would appear within a week after it had been contracted. On cross-examination he testified that he had never watched one until it was fully developed, that he had read some about them, but had no practical knowledge of them. This testimony was very weak and evidently could have had but very little, if any, weight with the jury. We cannot, however, say that he had no knowledge on the subject, and we think the court was correct in admitting it, and holding that its weight was for the jury.

3. It is insisted that the court erroneously instructed the jury as follows: "That there has been some evidence introduced for your consideration, in behalf of the plaintiff, tending to show that he took this horse back at different times, and complained to the defendant of the growth of these bunches upon the horse's hind legs, and the fact remains undisputed that about the 15th of September he took the horse back there, and left it there, and did not again take possession of the horse." It is urged that this statement is an encroachment on the province of the jury upon a point where there was a conflict of evidence. There was no conflict upon the question of his taking the horse back September 15th, leaving her there, and not again taking possession. There was a conflict as to when plaintiff first complained to defendant of the bunches. The plaintiff testified directly and positively that he took the horse to defendant at different times, and made complaint. Defendant admits that the horse was at his stable at different times between July 2d and September 15th, but that plaintiff made no...