Barr v. Van Duyn

Day, J.

I. The plaintiff introduced evidence tending to establish a contract as set forth in his petition. The defendant introduced evidence tending to establish the contract set forth in the answer. It was also proved that defendant took the animal away about the time alleged.

The court gave the following instruction: “If the defendant, by the terms of the contract, reserved the right to retake possession of the horse whenever he-became dissatisfied with plaintiff ’s manner of training or caring for the horse, in such case defendant would have to show negligence or ill treatment of the horse by plaintiff, or other good cause for taking possession of the horse before the expiration of the full time agreed upon by the parties, in order to avoid liability in doing so.”

i. contkact: consti-uctton ■ of: rescission, The giving of this instruction is assigned as error. If it should be conceded - that, if the contract was as defendant claims, he might take the horse into his posses- . , . . ... sion without showing negligence of plaintiff, or *230 ill treatment of the horse by him, still we think the instruction was error without prejudice. The defendant alleges in his answer that plaintiff was to retain possession of the horse, not merely until defendant should become dissatisfied, but until he should become dissatisfied with plaintiff’s method of training, driving and caring for the horse. It is incumbent upon defendant to prove the existence of the facts upon which he relied to justify him in taking the horse into his possession.

The abstract contains all the evidence, and there is no proof that defendant was dissatisfied in any respect. All the testimony upon the subject of retaking the animal is as follows: “He kept the mare until about the 16th of October,. 1875, at which time I took her away.” It may be admitted that the fact that defendant took the horse into his possession is proof that defendant was dissatisfied with something; but it is no proof that he was dissatisfied with plaintiff’s method of training, driving and caring for the horse. The defendant, then, did not prove the existence of any circumstances which authorized him, even under the contract as he claims it to be, to take the horse from plaintiff. An erroneous instruction as to what, in law, would justify him in taking the horse, was, therefore, error without prejudice. For the same reasons there was no error in refusing to give the instruction asked by defendant.

2 _._. damages. II. The court further instructed as follows: “ If you find the foregoing issues for plaintiff you will then have to determine the amount of plaintiff’s damages. And these, under the issues presented by the pleadings, would be the reasonable value of the plaintiff’s services in taking care of and training the horse, and the reasonable value of the keeping of the horse during the time plaintiff kept him, and in such case, your verdict should be for plaintiff' for this amount.” The giving of this instruction is assigned as error.

It is claimed that if the contract was as plaintiff insists, the only measure of damages to which he is entitled is the fair two-thirds value of the use of such an animal for the season *231 of 1876. The defendant, by taking the animal into his possession, rescinded the contract; he placed it beyond the power of plaintiff to secure any remuneration for his services, as prescribed in the contract. The plaintiff sets up this act of rescission, and claims the reasonable value of the services rendered. We have no doubt that he is entitled to this under the issues made.

This instruction being proper, there was no error in admitting the testimony, to which defendant objected, 'upon the subject of damages.

Affirmed.