
    F. L. Barnes, Appellant, v. John Love.
    1 Sales: warranty: instruction. An instruction that any positive statement of fact and not of opinion as to the quality or condition of the thing sold, which naturally and fairly shows that the seller intended to bind himself to its truth and the buyer so understood and relied upon the statement, constitutes a warranty, and is not open to the objection that it makes the existence of the warranty depend upon the sellers intention to bind himslf to the truth of the statement.
    2 Same. Where the courts instructions in a breach of warranty suit in the sale of a horse, .were all on the theory that if the animal was affected at the time of the sale with “moon blindness” she was unsound within the terms of the claimed warranty, and no other unsoundness was referred to in the evidence, a further instruction that, disease of the eyes would constitute unsoundness was not necessary.
    
      Appeal from Mahaslca District Gourt. — Hon. Byron W. Preston, Judge.
    Wednesday, February 17, 1909.
    Action to recover tbe consideration paid in the purchase of a mare. Plaintiff alleged a warranty of soundness, breach of such warranty, and rescission on account of such breach. Defendant interposed a counterclaim, for the keeping of the mare after she was returned to him in pursuance of the attempted rescission. There was a verdict against the plaintiff as to his claim, and in favor of defendant for expense of keeping, and from judgment on this verdict the plaintiff appeals. —
    Affirmed.
    
      David David and W. TI. Keating, for appellant.
    
      
      Bolton & Bolton, for appellee.
   McClain, J. —

The sole • question of fact involved in the case is whether the defendant warranted the mare to be sound or only warranted her sound so far as he knew. This issue was submitted to the jury, and was determined against the plaintiff by the verdict. There is no claim that the verdict is without support in the evidence, and there is nothing in the record on which the contention of the appellant that the verdict was the result of passion and prejudice and should be set aside on that ground can be sustained. The unsoundness complained of by plaintiff was that the animal was afflicted with periodic or recurrent ophthalmia, commonly known as “moon eyes,” and that this fact was not discovered by plaintiff until about a month after the purchase, when he promptly returned the animal on that account, claiming that the disease constituted a breach of oral warranty. The suggestion that our decision may become a valuable precedent as to the nature and cause of the disease of “moon blindness” in horses has not persuaded us that any such discussion is important or justified. Conceding that the animal had that disease, and that it would constitute a breach of warranty of soundness, the question remained under the evidence whether the warranty was unqualified.

As to the instructions, the chief complaint is of one in which the jury was told that “any positive statement or affirmation of fact and not of opinion as to the quality or condition of the thing sold made by the seller in the course of the negotiations, and . . . naturally and fairly importing that he intends to bind himself to its truth, and so understood and replied upon by the buyer, constitutes a warranty.” So much of the instruction is quoted for the purpose only of showing that it is not open to the objection made by appellant that under it the defendant would not be bound by tbe statement made unless be intended to bind bimself to its truth. Tbe question whether tbe language used constitutes a warranty is not made to depend upon tbe intention of tbe plaintiff, and tbe criticism of tbe instruction is without merit.

Another instruction is criticised because tbe jury is not told that disease of tbe eyes would constitute unsoundness, and it is contended that the court erred in refusing to give two instructions asked by plaintiff , . ...... , _ on this question; but the court instructed the jury throughout on tbe theory that, if tbe animal was afflicted at tbe time of sale with so-called “moon blindness,” she was unsound within tbe terms of tbe warranty contended by plaintiff to have been given and tbe jury could not possibly have misunderstood the instructions in this respect. No other unsoundness than that was referred to in tbe evidence.

Complaint is made of each of tbe other instructions given, but tbe objections seem to be so entirely without foundation that we deem it unnecessary to discuss them. Tbe mere reading of tbe instructions has satisfied us that they fairly presented to tbe jury all tbe questions necessary for their determination in reaching a verdict.

Alleged errors in tbe admission of evidence are recited in tbe argument, but without discussion, and it is unnecessary to elaborate tbe grounds of possible objection in order to show that they are without merit.

Tbe judgment is affirmed.  