
    Davis v. Figley.
    
      Appeal from, Benton Circuit Court
    
    Friday, June 23.
    CONFLICTING TESTIMONY: WARRANTY.
    Action in ordinary upon an alleged warranty in the sale of a stallion. Trial by jury; verdict and judgment for plaintiff, for $150. Motion for a new trial on the ground that the verdict was contrary to the evidence. This motion was overruled, and the defendant appeals.
    
      O. B. Gonldin for the appellant
    
    Shane & MeGa/t'tney for the appellee.
   Cole, J.

The only question is as to the sufficiency of the evidence to sustain the verdict. The plaintiff and his son testify directly to the fact of warranty by the defendant, that there was nothing the matter of the horse but a cold, which caused the enlargement (then observed by both parties) of his testicle bag. Other of plaintiff’s witnesses testify to facts tending more or less to corroborate these. The defendant, himself, directly denies the warranty, and produces other witnesses tending to corroborate him. The proof is indisputable that the enlargement was caused by a rupture and not by a cold. This evidence fully justified the verdict for plaintiff; and although the amount of the verdict, if for the plaintiff, should, under the testimony, have been more, this is a matter of which defendant cannot complain. The testimony by plaintiff and his son, that defendant offered to give a written warranty, which plaintiff declined, saying that he would take defendant’s word for it, would not amount to a waiver of the warranty.

The verdict upon the testimony in the record is very unsatisfactory to us, and the judgment is

Affirmed.  