
    Edward J. Hall, Jr., Resp’t, v. Cornelius R. Colyer, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    1. Sale—Warranty on sale of horses.
    On a sale of horses defendant warranted them as “ sound and kind in every respect.” The first time plaintiff used the team one of them plunged across the road, barely escaping running into another carriage, and did so several times thereafter. Held, that the jury, from these facts, was justified in finding a breach of warranty.
    2. Same.
    When the actions of a horse showing an ungovernable temper are shown so soon after sale and continue and are without reason, the jury is entitled to take evidence of subsequent conduct as evidence of previous unkindness.
    Appeal from judgment in favor of plaintiff.
    Action to recover for breach of warranty on "the sale of a pair of horses which defendant warranted to be sound and kind for family use.
    
      Daniel B. Thompson, for app’lt; Melville Bglesion, for resp’t.
   Barnard, P. J.

The action is one for breach of warranty-given on the sale of a team of horses by defendant to plaintiff. The warranty was in writing and was that the team was “sound and kind in every respect.”

The warranty being undisputed, the sole question litigated on the trial was whether there was a breach. It is proven that on the very first occasion the horses were used by the plaintiff one of the horses put down his head without cause and rushed away to one side of the road “and barely escaped running into another carriage. The same horse subsequently and with the same driver again without cause “plunged across the road.” The team in both instances was managed by a careful and skillful driver.

When the team arrived at plaintiff’s residence and his family had gone into the house and the team started for the barn, the same horse again made a sudden turn to the side of the road. It, was further proven that during the month of May, 1888, shortly after the purchase of the team the horse again plunged to the left while plaintiff and his family were in the carriage and then barely escaped running into another carriage. The unkindness-of the horse was proven by other witnesses on other occasions.

They all considered the team unsafe to drive, and if the facts-testified to are to be credited, the horse was obviously vicious: and ungovernable and unsafe to be used as a family team. The-defendant does not deny the inference to be drawn from the-evidence, but claims that it does not show unkindness at the time of the sale. When the actions of the horse showing a badr ungovernable temper are shown so soon after the sale and continue and are without reason, the jury were entitled to take the-evidence of subsequent conduct as evidence of previous unkindness.

The defendant gave evidence tending to show the fact that the-horse was kind. The jury have passed upon the question, and the finding is in favor of the positive evidence of facts showing a breach of warranty.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.  