
    Frederick J. Smith, Resp’t, v. James H. Ruggles, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    
      1. Sale—Title—Failure oe—Evidence.
    In an action by the purchaser of a horse against the seller to recover the price paid, because of the failure of title, the horse having been seized under a mortgage executed by one K, a former owner, defendant alleged that K was plaintiff’s partner and agent in the purchase, and that he was bound by his knowledge of the mortgage. The plaintiff testified that although K was present, and took part in the negotiation, he did so •only as his advisor, and that the purchase was solely for plaintiff’s benefit. In this he was supported by the receipts given at the time of the purchase. It was also proven that plaintiff sold a half interest in the horse to K’s wife, but subsequently took the title back when the title was disputed. The defendant testified that the sale was made to both plaintiff and K. The defendant was corroborated by K, who stated that after the seizure was threatened, plaintiff purchased his half interest, and agreed to assume the mortgage. Held, that a verdict for plaintiff was supported by the evidence, and judgment should be affirmed.
    .3. Same—Warranty—When Implied.
    , Warranty of title was to be inferred from the sale of the horse, and warranty of title is implied from the sale itself.
    ®. Trial—Statements oe counsel—When not error to rbeuse to require WITHDRAWAL OE.
    When counsel in his argument had made an erroneous statement upon a question of law, it is not error for the court to refuse to require its withdrawal, when the opposing counsel is informed that he can have a proper instruction on what the case really was, no request being made for such instruction.
    Appeal from a judgment entered upon a verdict of a jury-rendered at a circuit court of Westchester county.
    This action was brought to recover the price paid for a horse sold by defendant to plaintiffs which had been taken from plaintiff by virtue of a chattel mortgage executed by one H. 0. Kughler, who was a former owner. On the trial the plaintiff testified that he bought the horse for himself alone, but on the information and at the instance of Kughler, who told plaintiff he once owned it, and recommended it to him. Kughler was present at the purchase, and plaintiff said he was guided by Kughler’s opinion as to the value of the horse and Kughler subsequently paid part of the purchase money for plaintiff without at the time mentioning Kughler as the purchaser. The receipts also referred to Smith as the purchaser. Although Kughler had been a horse dealer plaintiff had not been associated with hi-m in business.
    After the plaintiff bought the horse he sold a half interest in it to Kughler’s wife, but denied that Kughler had an interest m it. After hearing that there was a dispute in the title he took the half interest back from Mrs. Kughler.
    Plaintiff m his testimony stated that until the horse was seized he never heard of any claim against it nor did he ‘ agree to assume any such claim. Defendant’s testimony was to the effect that he understood from both plaintiff and Kughler that they were purchasing the horse jointly; that Kughler did most of the talking during the negotiation. The price agreed on was $350, of which plaintiff paid him fifty dollars and afterwards $125 more and at the same time Kughler offered a check which he (defendant), refused. Kughler afterwards paid him $175, the balance of price and the horse was delivered to him. Kughler in his testimony stated that he took the horse away from Kew Jersey, where it was when the mortgage was given, by the consent of the mortgagee and sold it, that he and plaintiff had never dealt in horses together; but that the arrangement between them was that they should buy the horse jointly, and that he paid half the purchase-money; that he trotted the horse at different places until the seizure, and that at about that time he informed the plaintiff of the mortgage, and that plaintiff bought his interest, and paid him for it and assumed the mortgage. Palmer another witness testified that plaintiff assumed the mortgage, and that he knew that plaintiff had divided money won at races.
    A non-suit was moved for by defendant on the ground that a partnership existed between plaintiff and Kughler and that plaintiff being Kughler’s agent in the transaction, and having knowledge of the mortgage, plaintiff was bound thereby. The motion was overruled and the jury found for plaintiff.
    
      A. G. Auhery, for app’lt; Frederick M. Littlefield, for resp’t.
   Barnard, P. J.,

The complaint avers the sale of a horse by defendant to plaintiff with a warranty of title and that the title failed. That the horse was taken from plaintiff’s possession by virtue of a mortgage given by one Kughler who owned the horse when the mortgage was given. The answer avers that the sale was made to Smith (plaintiff) and Kughler as partners; that there was no warranty of title but admits the taking of the horse by force of the Kughler mortgage. The warranty of title was to be inferred from the sale of the horse. And warranty of title is implied from the sale itself. McKnight v. Devlin, 52 N. Y. 399.

As to the question whether the sale was made to Smith and Kughler and whether Kughler was the agent of Smith in the purchase, the evidence conflicts. The plaintiff says, that he bought the horse and paid for the same. The form of the receipts support Mm but Kughler was by and in fact handed a part of the purchase price to defendant, and it was through Kughler that plaintiff obtained informática that defendant had the horse for sale. It was proven that subsequently to the purchase the plaintiff conveyed one half of the horse to Kughler’s wife and subsequently took the title back after he heard that there was a dispute as to the title.

The defendant simply states that both Smith and Kughler •said they were buying the horse together but Kughler states that in fact the horse was bought by himself and Smith, and that Smith bought one half of him (Kughler) after he was informed by Kughler of the existence of the mortgage which took the horse. This seems so unreasonable that a finding of the jury against its credibility will nob be disturbed on appeal. The question of fact must be •deemed settled by the verdict. The exceptions are not sufficient to call for a reversal. The paramount title was admitted. It was improper to receive evidence of what induced the defendant to write on the receipt (purchased by Smith). The facts could be proven and they were fully received. The same can be said in respect to the striking out the words (for his half of the horse). Whatever was said and done was to be received. What was inferred from what was said or done was to be excluded; this was for the jury to find. The contents of the telegraph dispatch sent by Kughler to Bridgeport was not admissible against the plaintiff. It was an act between strangers to the record. The plaintiff could have probably made an inconsistent statement upon a collateral question, namely, whether the presumption that the statute laws of another state is presumed to be the same as one in this state upon a given subject and the defendant asked the court to compel the counsel to withdraw the statement. The court offered to charge what the law really was on the subject if requested, and declined to do more.

No request was made and the matter was permitted to •drop.

This furnishes no error upon which to review the judgment.

The judgment should therefore be affirmed, with costs.

All concur.  