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Alexander v. Dutton

Alexander v. Dutton.

Alexander v. Dutton, 58 N.H. 282 (1878)
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Court
Supreme Court of New Hampshire · State Highest Courts
Decided
March 5, 1878
Judges
Allen
Citations
58 N.H. 282
Headnotes
Whether corns in a horse’s feet constitute unsoundness is a question of fact, to be determined upon the evidence and the general legal definition of unsoundness.
Summary
Assumpsit, for a breach of warranty of soundness in a horse. The evidence of unsoundness was, that the horse had corns in his feet. The defendant contended, that, as matter of law, corns did not constitute unsoundness. The court declined so to instruct the jury, and the defendant excepted.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Allen

Allen, J.

The defendant’s contention, that, as matter of law, corns in a horse’s feet do not constitute unsoundness, cannot be sustained.

*283 The court cannot take judicial notice of the fact (if it be a fact) that corns are never so serious as to amount to unsoundness. The law gives a general definition of unsoundness, and leaves it to the trier of the facts to find whether the infirmity of corns, in a particular case, is within the legal definition of unsoundness, — whether that defect materially diminishes the value of the horse and his ability to perform service. Such a diminution of value and ability is an unsoundness, although it be temporary and curable.

Kiddell v. Burnard, 9 M.

& W. 668;

Roberts v. Jenkins, 21 N. H. 116, 119, 120.

Judgment on the verdict.

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