
    Howard C. Fowler, Respondent, v. Frank Anderson, Appellant.
    Third Department,
    May 21, 1909.
    Trial — submission of issues not raised — mistrial.
    Where in an action based upon a breach of warranty on the sale of horses, the court refused to submit that issue to the jury, but charged in substance that if the defendant had no knowledge of latent defects not discoverable by ordinary . inspection, which he ought to have disclosed to the plaintiff, the latter cannot recover, but if he had such knowledge he was liable, a verdict for the plaintiff is presumed to be based upon a finding that the defendant had such knowledge and failed to disclose it.
    As such issue was not raised by the pleadings or evidence, there was a mistrial. ■
    Where a verdict, is based upon matters outside the issues a new trial will be granted.
    Appeal by the defendant, Frank Anderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 29th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of ¡November, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      James H. Bain and L. M. Pulver, for the appellant.
    
      George R. Salisbury, for the respondent.
   Chester, J.:

The action was brought to recover damages for a breach of warranty made upon the sale of a team of horses. The defense was a ■denial. Although the question of a- breach of warranty was the issue tendered by the pleadings and the one upon which much of the evidence upon the trial was taken, yet the court charged in substance that there was no question of warranty in the case and refused to submit that question to the jury. The plaintiff excepted, but as the judgment was in his favor his exceptions are not up for review.

The court charged, in substance, that the question for the jury to determine was as to whether the defendant had knowledge of hidden defects in the horses or of latent conditions that could not be revealed by ordinary inspection, which he ought in fairness to have disclosed to the plaintiff, and that if he had no such knowledge the plaintiff could not recover, but if he had such knowledge then he must compensate the plaintiff for damages.

It is presumed that the verdict in favor of the plaintiff was based upon a finding that the defendant'had such knowledge and failed to disclose it. But that was not the issue presented or tried, and consequently there was a mistrial.

• Even if we could find enough in the evidence to support a verdict ■for the plaintiff on the questions of the alleged warranty and the defendant’s breach thereof, yet no such verdict has.been found and no such questions submitted.

The verdict in favor of the' plaintiff being based upon matters outside of the issues, we think there must be a new trial.

All concurred.

Judgment and order reversed and new trial granted, with costs to abide event.  