Whitney v. Houghton

In an action for breach of warranty in the sale of a cow, the warranty alleged in the declaration was that the cow was “ well, sound and all right.” The warranty proved at the trial was that the cow “ eats well and is well.” Held, that there was a variance between the declaration and the proof; but that the plaintiff might amend, after verdict in his favor, taking no costs since the trial. In an action for breach of warranty, a witness for the defendant, on cross-examina tian, denied that he ever had a certain conversation with the plaintiff. The plaintiff testified, in rebuttal, that he had such conversation with the witness. On cross-examination, the defendant proposed to ask the plaintiff whether, subsequently to the alleged conversation, he did not go to see the witness to get him to testify for him on the trial, and whether the witness did not then say to him in substance, either, “ I don’t know anything about the case,” or, “ I can’t help you as a witness; ” and that the plaintiff did not then allude to or mention the alleged conversation; the purpose of the inquiry being to show that the plaintiff’s conduct on that occasion was inconsistent with his having had the alleged conversation. Held, that the evidence was properly excluded.

Contract for breach of warranty in the sale of a cow. The declaration alleged that the defendant undertook and promised that the cow was “ well, sound and all right.” Answer, a general denial. At the trial in the Superior Court, before Dewey, J., the plaintiff, in support of the allegation of warranty, offered the evidence of his agent who bought the cow, and he testified as follows: “ The cow coughed, and I asked the defendant what made her, and he said it was nothing; I said, 1 She ought not to cough. Does she eat well ? ’ The defendant said, 1 She eats well and is well.’ ” The plaintiff also offered in evidence a conversation of the defendant after the sale, in which he said, “ I sold the cow for a well cow, and she was well.” The defendant called as a witness one Worcester, who practised as a veterinary surgeon, who testified that in the spring of 1874, a short time before the sale, he was at the defendant’s barn and saw the cow, and, at his own suggestion, cut off her tail; that the cow was not sick, but was well; and that he never was called to doctor the cow before the sale. On cross-examinatian, the witness was asked whether he had not told the plaintiff, on October 30, 1874, that the cow was sick, and the defendant sent for him to come and see her, and that he cut her tail off; the witness denied that he ever had any such conversation with the plaintiff. The plaintiff, in rebuttal, testified that, on October 30, 1874, after the sale, he had a conversation with Worcester, in which the latter, in reply to his question whether Worcester had ever doctored the cow before the sale, said that the defendant came after him and said his cow was sick, and he went and saw her and cut her tail off. On cross-examination, the defendant proposed to ask the plaintiff whether, subsequently to the alleged conversation with Worcester, he did not go to see Worcester to get him to testify for him on the trial, and whether Worcester did not then say to him in substance, either, “ I don’t know anything about the case,” or,> “ I can’t help you as a witness; ” and that the plaintiff did not then allude to or mention the alleged conversation. The defendant stated that the purpose of the inquiry was to show that the plaintiff’s conduct on that occasion was inconsistent with his having had such a conversation as that alleged; and that he proposed, if the plaintiff denied it, to prove by other witnesses the above subsequent conversation with Worcester, and that the plaintiff then made no allusion .to the alleged conversation of October 30. The judge excluded the question. The defendant asked the judge to rule that there was a substantial variance between the allegation of warranty and the proof, and to direct a verdict for the defendant. The judge declined so to rule, and submitted the case to the jury, who returned a verdict for the plaintiff; and the defendant alleged exceptions.