Willard v. Stevens

Eastman, J.

The principal question in this case arises upon the construction to be given to the written contract of warranty in the sale of the horse. Contracts are to be construed according to the intention of the parties, to be collected from the sense and meaning of the language used. And where the terms used to express the agreement are doubtful, but the intent of the parties is manifest, it is the duty of the court to give such meaning to the terms as will best answer the intent.

The contract upon which this suit was brought is as follows: “Mr. Jeremiah Willard bought one red horse, six years old, for one hundred and twenty-five dollars, which I warrant sound and kind;” and signed by the defendant. The action is not case for a deceit, but assumpsit on the contract, and hence we are to look to the agreement itself to ascertain, the intention of the parties. What was their intention ? To what did the warrant extend ? Did Willard understand, and did Stevens intend, that the warranty should extend beyond the soundness and kindness, or not ? Had the contract read, “ Jeremiah Willard bought one red horse, six years old, for one hundred and twenty-five dollars, sound and kind,” there would be no great difficulty in holding, that whatever of warranty was to be found in the agreement would apply to all its material parts. But inasmuch as the word war *276 rant is introduced into the contract, and in immediate connection with the soundness and kindness, can it relate hack to the age ? The defendant sells a red horse, six years old, for one hundred and twenty-five dollars, and warrants him sound and kind. Now if it had been the intention to warrant the age as well as the soundness and kindness, it could very easily have been so said, and we think it would have been. The defendant does not say, I warrant the horse six years old, but “ I warrant him sound and kind; ” and in order to make the warranty apply to the age the contract must be divided. It must be held that the intention was, first, to warrant the age by implication, and then to make an express warranty of the soundness and kindness. We think there can be but little doubt as to the true construction to be put upon this contract; that the age is matter of mere description, and that the warranty applies only to the soundness and kindness.

Had, therefore, the verdict been a general one, we should have been obliged to set it aside ; but the jury, under the instructions of the court, having passed upon both branches of the question, there is no difficulty in entering judgment for the amount returned as damages on account of the unsoundness, if the plaintiff will remit the amount found for the deficiency in the age.

The exception to the instructions given to the jury to return specially the amount found upon each branch of the question, comes too late. Where a case is tried upon the general issue, as was done here, the court cannnot submit a particular question of fact to the jury, to be found and returned by their verdict, except by the consent of the parties. Walker v. Sawyer, 13 N. H. Rep. 191 . But it is no uncommon practice to submit specific questions to the jury, and to give them particular instructions, in order that the questions of law arising upon the case may be clearly presented, and the litigation thereby more speedily terminated. Usually, perhaps, when the court propose to give other than general instructions, the intention is stated to the parties that the objections, if any, may be suggested. But this we do not conceive to be necessary. As the matter is one of *277 practice, and the objection, if raised, could be obviated at the time by a change of the instructions from special to general, we have no hesitancy in saying that the exception should be stated before the case goes to the jury; that a party cannot be permitted to lie by and wait the result, and then raise his objection.

It was clearly the intention of the court to have the jury pass upon all questions of fact involved in the case, and leave the questions of law to be investigated or not, as might become necessary; and in so doing we think they pursued a very proper course. No prejudice could arise to the defendant by allowing the question as to the age to be gone into, as that question was kept separately from the other in the making up of the verdict. The jury would be quite as likely to assess the damages for the unsoundness at a lower sum, by reason of the amount assessed for the age, as they would had not the age been a subject matter of inquiry. But inasmuch as the questions were kept distinct by the court in their instructions, and separate amounts have been found for both, there is nothing from which we are to infer any thing different from the finding of the jury.

The plaintiff may take judgment on the verdict for the forty-four dollars, provided he will remit the eighteen.