
    SPRINGSTEED a. LAWSON.
    
      Supreme Oow% Third District; General Term,
    May, 1862.
    Uniting Causes of Action.—Breach of Warranty.—Fraud and Deceit.—Exception.—Latitude on Cross-examination . —Unsoundness of Horse.
    The causes of action arising out of the same transaction, under § 167 of the Code, must he consistent with, not contradictory to each other
    Thus, a cause of action for fraud and deceit in concealing the defects of a horse purchased by plaintiff, cannot be united with a cause of action for breach of a warranty of soundness given on the sale.
    A mere cold, controllable by ordinary remedies, not affecting the general health or usefulness of a horse, is not an unsoundness.
    . Where a charge to the jury is susceptible of two constructions, the one warranted by the case, the other erroneous, a party cannot take advantage "of his exception, without presenting the modification necessary to free the charge from ambiguity.
    It is proper to prove by the cross-examination of a party offering himself as a witness on his own motion, any facts that impeach his evidence.
    In' an action to recover damages for fraud and deceit in concealing the defects of a horse purchased by plaintiff from the defendant,—Bdd, that on cross-examination of plaintiff, defendant might show that plaintiff had disposed of the horse, after owning it for a few months, at the price for which he bought it.
    Appeal from a judgment and motion for a new trial on the ground of the misconduct of j urors.
    This action was brought by William W. Springsteed against Peter Lawson, to recover $325, for breach of warranty, and fraud in the sale of a horse. The complaint was as follows:
    “ Plaintiff complains of the defendant for that, on or about the 29th of October, 1859, at the city of Albany, the said defendant then and there sold the said plaintiff a certain young horse for the sum of four hundred dollars, and then and there, falsely and fraudulently, warranted the said horse was then free from cold, and in every respect sound and all right, except the scratches on the hind leg; and in consideration of the premises, and relying upon the representation and warranty aforesaid, the said plaintiff undertook and promised to pay the defendant for said horse the sum of four hundred dollars, and gave the defendant plaintiff’s note for the same. Plaintiff further avers that said horse was, at the time of said sale and delivery, diseased, unsound, unhealthy, wind-broken, and had the heaves, of all which facts the said defendant had notice and cognizance. By reason of which premises the said horse was worth three hundred and twenty-five dollars less than he would have been if he had been in the condition defendant warranted and represented him to be; and plaintiff, by occasion of said fraudulent representations and fraudulent warranty and deceit, has sustained damages to the amount of three hundred and twenty-five dollars, for which amount plaintiff demands judgment against the defendant with costs.” The answer was a general denial.
    The plaintiff’s counsel in opening the cause to the jury claimed to recover on the ground of fraud and deceit, and that if the ^plaintiff should fail to prove the scienter, that he could recover upon proof of the warranty and breach; whereupon the defendant’s counsel insisted that the plaintiff, according to the pleadings, must show fraud or deceit on the part of the defendant. The plaintiff’s counsel, after discussion, elected to try the cause on the ground of deceit and a fraudulent warranty. The plaintiff purchased the horse the 29th of October, 1859, for the sum of $400, at the city of Albany, and sold him at the same place on the 12th of January, 1860, for the same sum, as was shown, under objection, on the cross-examination of the plaintiff.
    The plaintiff requested the court to charge the jury, that if they found that the defendant at the time of the sale of the horse warranted him sound in every respect, except the scratches, and they should find the horse was not then sound with that exception, the plaintiff was entitled to a verdict for the breach of warranty merely, notwithstanding they should find the defendant did not know of the unsoundness at the time of the sale. The court refused so to charge the jury under the pleadings, and because of the basis on which the trial had been conducted under the plaintiff’s opening, to which decision the plaintiff’s counsel excepted.
    The court, upon the defendant’s request, among other things, charged the jury that if they found the horse, at the time of the sale, had a mere cold, controllable by ordinary remedies, it was not such an unsoundness as to constitute a breach of a general warranty of soundness, to which charge and decision the plaintiff’s counsel excepted. The defendant had a verdict; the plaintiff appealed.
    
      Solomon F. Higgins, for the appellant.
    
      Israel Lawton and Ira Shafer, for the respondent.
   By the Court.—Peckham, J.

is an appeal from a judgment entered on a verdict for the defendant at a circuit in Albany. The case is heard on exceptions, and a motion for a new trial on account of misconduct in the jury comes on at the same time by order of the special term where that motion was first made.

The first ground relied upon in the exceptions is, that the court erred in refusing to charge that the plaintiff might recover in-this case without proving fraud. The complaint in this case contains all the elements of two distinct separate causes of action—a breach of warranty, and also fraud in the sale of a horse. Though perhaps within the spirit of the Code (that all actions arising out of the same transactions may be joined), these causes might have been united, yet that having been long since settled the other way, it is not advisable to review it. (Sweet a. Ingerson, 12 How. Pr., 331.)

The plaintiff was then called upon to elect, and he plainly gave the court to understand that he elected to make this a complaint for deceit and fraud in the sale. After the proof had been closed, and the trial had proceeded throughout upon the basis of its being an action for fraud, it was quite too late to change position, and then claim it to be an action simply for breach of warranty. The court very properly held the plaintiff bound by his election. The charge was also unobjectionable as to a cold, controllable by ordinary remedies, not being in this case such an unsoundness as to constitute a breach of warranty. I should have understood at the trial, that the judge intended by this charge to say that if the horse had a mere common cold, not affecting his general health or his use, the plaintiff could not recover. If the charge was not so understood, the plaintiff should have asked for its modification, which he omitted to do. He can scarcely be allowed to take up.a single separate sentence, capable of being differently understood, and except to it, without presenting the modification he claimed. Understood as I think the court intended his proposition, there was no case made by the evidence for any verdict or damages.

The last point made to reverse the judgment is, that the court erroneously allowed the defendant to prove, on the cross-examination of plaintiff, the price for which he sold the horse in the winter after the purchase by plaintiff. This was entirely unobjectionable on cross-examination. The plaintiff on direct examination had sworn that the horse was worth but $125 when he bought him, and would have been worth $500 if he were as warranted. There was no pretence of any change in the horse for the better, from the time of his purchase to the time of the sale by plaintiff. It was then entirely proper to prove, by a cross-examination of the plaintiff, any facts that impeached his evidence. This fact certainly had that tendency very strongly. It was therefore competent.

As to the motion on the ground of irregularities in the jury, assuming that good cause is shown in the moving affidavits for the motion, they are very fully answered by the opposing papers.

The motion is denied with ten dollars costs, and the judgment is affirmed. 
      
       Present, Hogeboom, Peckham, and Miller, JJ.
     