
    [No. 15072.
    Department Two.
    June 12, 1894.]
    J. H. MERGUIRE, Respondent, v. THOMAS O’DONNELL, Appellant.
    Action For Deceit — Breach ob Warranty — Instructions—Caveat Emptor.—In an action to recover damages for deceit and fraudulent representations upon a sale of horses, and for a breach of warranty as to their soundness, instructions enunciating the law as to the doctrine of caveat emptor are inapplicable to the case, and are properly refused.
    Appeal—Review of Instructions.—Where the court, upon its own motion, instructed the jury upon the issues made in the case it is not error to refuse instructions asked which were covered by those given; and, where no objection or exception was made to the instructions given, they are not the subject of review.
    Pleadings—Admissions.—A fact alleged in the complaint, and not denied by the answer, becomes an admitted fact in the case.
    Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.
    The facts are stated in the opinion.
    
      F. B. Ogden, for Appellant.
    
      F. A. Hornblower, for Respondent.
   Searls, C.

This is an action to recover damages for deceit and fraudulent representations in the sale by defendant to plaintiff of three horses. Plaintiff had judgment for $650, from which judgment, and from an order denying a motion for a new trial, defendant appeals.

About the 1st of June, 1890, plaintiff purchased from the defendant, at East Oakland, three horses for $400, paying $100 down and the residue to be paid the following day upon delivery of the horses in San Francisco. Defendant called upon plaintiff the following morning, in advance of the arrival of the horses, and received the residue of the purchase price. Almost immediately upon the arrival of the horses, and within an hour, they were found to be ailing and discharging from the nose. The disease with which they were afflicted proved to be glanders. One of them was con- ' demned by the public authorities, and killed in a short time, and the others shared the same fate a few months later.

Plaintiff, after the death of the first horse, offered to return the others, and demanded a rescission of the contract and return of his money, which was refused by the defendant.

The complaint charged defendant with falsely and fraudulently representing to plaintiff that the horses were well and sound; that the plaintiff believed these statements to be true; and, relying upon them, was induced to purchase, and that defendant well knew the statement to" be false, etc.

The cause was tried by a jury, and the main controversy was as to these representations and knowledge by defendant of the condition of the animals. There was testimony, on the part of plaintiff, tending to show that defendant knew the condition of the horses, instructed his employee to keep their noses clean when plaintiff and his brother came to examine them, which was done; and that he represented to plaintiff that “ they were all sound, except one horse, who had a blind eye”; and at another time during the negotiation, when asked if there was any thing the matter with them (the horses), he said: “No, except that one had a defect in the eye.”

On the other hand, there was a denial of all these representations by defendant, and of all knowledge on his part of any ailment or disease in the horses.

A number of other witnesses, on the part of defendant, testified that the horses showed no signs of glanders up to the time of sale. In the face of this conflict of evidence, we must regard the verdict of the jury as conclusive upon the facts. The jury rendered a verdict in favor of plaintiff for $650. This, it is claimed by appellant, was excessive.

There was testimony tending to show that plaintiff expended about $100 in surgical treatment of the horses, and that he destroyed the stable in which the diseased horses had been kept, and burned the materials which, owing to the highly contagious character of the disease, was shown to be reasonably proper. This stable was shown to have been worth $200.

As plaintiff was entitled to recover, if at all, the purchase price of the horses, which was $400, we cannot say the added $250 thereto was excessive, in view of the fact that the several special causes of damage were pleaded.

The instructions asked by the defendant, and refused by the court, were objectionable for various reasons. The first, because, while it correctly enunciated the law as to the doctrine of caveat emptor, in the absence of fraud or of a warranty, still it was inapplicable to the case at bar, in which the gravamen of the charge was:

1. Fraud on the part of the defendant, whereby plaintiff was prevented from discovering the diseased condition of the horses; 2. An express warranty of soundness of the horses by the defendant; and 3. Because so much of the instruction as was applicable was subsequently given.

Like observations apply to the refusal of the court to give the other instructions asked.

The court, upon its own motion, instructed the jury upon the issues made in the case, and, so far as we observe, there was no error therein, and, as no objection was made or exception taken to such instructions, they are not the subject of review.

The necessity for the destruction of plaintiff’s stable, by reason of the virus of the glandered horses, is alleged in the complaint, and, not being denied by the answer, was an admitted fact in the case.

The judgment and order appealed from should be affirmed.

Vanclief, C., and Temple, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Fitzgerald, J., De Haven, J., McFarland, J.  