
    Abel Morrill v. Martin B. Bemis.
    
      Warranty. Pleadings.
    
    Where a declaration alleged that a horse was warranted sound except as to a specified defect, and did not allege that the .effects of this defect were other than and beyond what was obvious, and operated as a breach of the warranty, it was held, that the plaintiff could not recover under such declaration for any unsoundness caused by said defect.
    Action on the Case for a breach of warranty and for false representations in the exchange of horses. Plea, the general issue. Trial by jury, March Term, 1864, Peck, J., presiding.
    The plaintiff’s declaration alleged a warranty of soundness in the horse except a bunch on one hind leg, and that the horse was unsound in other particulars.
    It appeared that the defendant warranted the horse sound except as to this bunch, and the evidence was conflicting as to what he said in making the trade about the effect of the bunch.
    The plaintiff’s evidence also tended to show that the horse had other defects. The defendant’s evidence tended to show that there was no unsoundness or lameness except that which was caused by this bunch near the foot.
    The court submitted the case to the jury, both upon the ground of a warranty and upon the ground of false and fraudulent representations, so that the jury might have found a verdict for the plaintiff upon either ground.
    In charging the jury as to the right of the plaintiff to recover upon the ground of a warranty of soundness, the court told them among other things not excepted to, that if they found no unsoundness in the horse, except that bunch, and that he was sound at the time of the trade, except so far as that bunch made him unsound, then there was no such breach of warranty of soundness as is alleged, as would entitle the plaintiff to recover under this declaration .on the ground of a warranty of soundness, even if the bunch made him lame. To this part of the charge the plaintiff exceptad, Yer-dict for the defendant.
    
      J. P. Lamson, for the plaintiff.
    
      C. H. Heath, for the defendant,
   Barrett, J.

The plaintiff, in his declaration, does not allege oany breach of warranty by reason of unsoundness caused by the bunch on the horse’s hind leg. The jury found that there was no unsoundness except that produced by said bunch. It was only as to the matter of unsoundness in this respect, that exception was taken to the charge. We think this was properly put to the jury. If the plaintiff had alleged that that bunch, in its effects upon the horse, was other than and beyond what was obvious, and what the defendant warranted, the case might have had a different aspect. But every count excepts that bunch from the alleged warranty, and is destitute of any averment either of character or consequences attributable to it, that would operate a breach of the warranty of soundness.

Judgment affirmed.  