
    Herman A. Struebing, Appellant, v. John C. Stevenson, Appellee.
    Breach of warranty: instruction: determination of applicability. . The correctness of an instruction cannot always be determined by the pleadings alone, but reference must be had to the evidence and issues contested upon the trial.
    
      Appeal from Buchanan District Court.— Hon. F. C. Platt, Judge.
    Thursday, November 16, 1906.
    Action at law for damages for alleged breach of warranty and false representations in sale of a herd of cows. Verdict and judgment for defendant, and plaintiff appeals.
    ■— Affirmed.
    
    
      C. E. Ransier and M. W. Harmon, for appellant.
    
      E. E. Hasner, for appellee.
   Weaver, J.

On March 26, 1902, the defendant sold to the plaintiff a herd of thirty-two Shorthorn cows and heifers. In this action plaintiff charges that the cows were expressly warranted to be all right, suitable for breeding purposes, regular breeders, and that twenty-two head of them were with calf by a certain thoroughbred bull known as “ Red Goldfinder.” In a second count of his petition he charges that defendant falsely represented the cows to be as above stated, and that in violation of said warranty, and contrary to said representations, the cows, or many of them, were and had been sick of an obscure disease known as “ contagious abortion,” were not suitable for use for breeding purposes, and were not with calf by Red Goldfinder, to the great loss and 'damage of the plaintiff. Tire defendant took issue upon the allegations of warranty and false representations, and the verdict was in his favor. ‘ Counsel for appellant do not contend that the verdict is without support in the testimony, but argue that the trial court erred in its instructions to the jury and in refusing other instructions asked. Only two propositions are relied upon for a reversal.

I. It is said that the court, in the second paragraph of its instructions, erroneously told the jury in substance that, if plaintiff had failed to prove the alleged diseased condition of the cows at the time of their purchase, he could recover nothing from the defendant. This it is said unduly narrowed the issues, because the alleged warranty went beyond the matter of disease and assured the plaintiff that the cows were suitable for breeding purposes and were with calf by Red Goldfinder. If we were to pass upon this paragraph alone as applied to issues joined in the pleadings, there would be an appearance of mei;it in the objection here made. But the appropriateness of instructions cannot be determined by the pleadings alone, for reference must be had also to the testimony introduced and to the issues actually contested upon the trial.

Counsel have not seen fit to abstract all the evidence, but, taking it as given and referring to the transcript which has been certified to this court, it quite clearly appears that the alleged diseased condition of the cows was the one central fact upon which plaintiff relied as a breach of the alleged warranty, and’ that the unsuitableness or unfitness of the cows or some of them for breeding purposes was put forward not as an additional ground of recovery, but as showing the deleterious and damaging effects of the disease above referred to. This feature of the trial is further emphasized by the fact that in all of the several instructions asked by the plaintiff his right to recover was based, first, upon the warranty or representations, and, second, upon the diseased or unsound condition of the cows. Moreover, it should be said that in another part of the charge the court correctly stated what facts were essential to constitute a warranty, and the jury by a special verdict found that no warranty had been established. Of the alleged warranty that the cows were with calf by Bed Goldfinder,' we think the abstracts disclose no testimony which would have justified a verdict in the plaintiff’s favor. We find, therefore, no prejudicial error in the above-mentioned paragraph of the court’s instructions to the jury.

II. The appellant further insists that the trial court erred in charging the jury that a representation by the plaintiff that the cows were sound would not render him liable for false representations, unless he knew them to .be unsound, and in refusing to charge that such liability would arise if defendant had reason to believe that such unsoundness existed and concealed such knowledge from the plaintiff. We find it unnecessary to decide the question thus raised. We have carefully examined the abstracts and find no evidence tending to show that the cows were diseased at the time of the sale, or, if they were diseased, that defendant knew, or ought to have known, 'of the fact, and a verdict for the plaintiff could have been sustained on neither theory of the law.

For the reasons stated,- the judgment of the district court is affirmed.  