
    Herbert v. Drew.
    Instructions to Jury.—Repetitions.—Where, in its instructions to the jury, the court repeated substantially the same instruction in different forms in favor of one party, while in stating the law in favor of the adverse party’s theory of the case, there was no such repetition;
    
      
      He Id, that this, though it might be bad taste, was no error.
    
      Same.—Irrelevant Instruction.—The Supreme Court will not reverse a judgment because an instruction given to the jury, by which the appellant could not have been injured, was irrelevant.
    
      Same.—Instruction as to Proof Required.—In an action in which the complaint set forth several distinct causes of action, each of which was sufficient, the court instructed the jury “that before the plaintiff would, in any event, be entitled to recover in this case, the jury must find from the evidence that the allegations and averments in the complaint are proved substantially as laid; that bis right to recover cannot be enlarged beyond the case made by his complaint; and if the jury believe that the plaintiff has failed to prove any one of the material averments in his complaint in its general scope, the jury must find for the defendant.”
    
      Held, that the instruction was erroneous.
    APPEAL from the Lagrange Common Pleas.
   Gregory, J.

Herbert sued Drew for fraud in tbe sale of sheep, and for breach of warranty. Tbe complaint contains three paragraphs, tbe first and third for a false and fraudulent representation as to quality and soundness; and tbe second for a breach of an express warranty. Tbe defendant answered by tbe general denial. Tbe issues were submitted to a jury; verdict for tbe defendant; motion for a new trial overruled, and tbe plaintiff excepted.

Tbe ground of tbe motion was error of law occurring at the trial, in tbe misdirection of tbe court in the instructions given. The court gave nineteen instructions, to eighteen of which tbe plaintiff' excepted.

It is admitted by counsel for tbe appellant that tbe instructions, with two exceptions, are a correct exposition of tbe law, but it is contended that most of them are on tbe side of tbe defendant, therefore unfair to the plaintiff' and calculated to mislead tbe jury. ' -This case does not come within tbe rule laid down in Fahnestock v. The State, 23 Ind. 231. There tbe court instructed tbe jury upon one hypothesis, arising from tbe evidence against the defendant, and failed to instruct on tbe one in his favor. In the case at bar tbe complaint is, that tbe court repeated substantially tbe same instruction, in different forms, in favor of tbe defendant, while, in stating tbe law in favor of tbe plaintiff’s theory of the case, no such repetition was made. This may be bad taste, but it is not bad law.

The court charged the jury, “that in the sale of property of the kind sued for in this case, if the same was exhibited to the plaintiff, the law will not imply any warranty either of quality or soundness of property so sold.” It is claimed that.this instruction was irrelevant; that there was no issue to which it could apply. The complaint was for fraud; implied warranty, arising from false representations; and express warranty. There was no issue to which the insti’uction could apply, but it is difficult to see how it injured the plaintiff. He does not claim to recover on the ground of an implied warranty arising from the nature of the property sold.

The court instructed the jury, “that before the plaintiff would, in any event, be entitled to recover in this case, the jury must find, from the evidence, that the allegations and averments in the complaint ai’e proved substantially as laid; that his right to recover cannot be enlarged beyond the case made by his complaint, and if the jury believe that the plaintiff’ has failed to prove any one of the material averments in his complaint in its general scope, the jury must find for the defendant.” There were three distinct causes of action in the complaint, the proof of any one of which entitled the plaintiff to a verdict. This instruction was clearly erroneous. But it is contended that it was corrected in the other instructions given to the jury. The jury were not told in any one of the instructions that they could find for the plaintiff on proof .sustaining any one of the causes of action contained in the complaint, but were merely instructed as to what evidence was necessary to sustain each paragraph thereof. But it-is difficult to see how this instruction could have been corrected otherwise than by its withdrawal. The j ury were told, that, “ in any event,” the plaintiff' could not recover .short of proof of his entire complaint, or, at least, the material averments thereof.

A. Ellison, for appellant.

A. B. Kennedy and J. H. Balter, for appellee.

Eor this error, the motion, for a new trial ought to have been sustained.

Judgment reversed, with costs. Cause remanded,- with directions to grant a new trial, and for further proceedings.  