
    Hall v. Colyer.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Sale—Wabbanty.
    A warranty that horses are “ souiid and kind in every respect” is broken if one of. the horses is in the habit of making sudden plunges without cause.
    Appeal from circuit court, Kings county.
    Action by Edward J. Hall, Jr., against Cornelius B. Colyer. Verdict for plaintiff. From the judgment rendered thereon defendant appeals.
    Argued before Barnard, P. J., and Dykman, J.
    
      Daniel B. Thompson, for appellant. Melville Egleston, for respondent,
   Barnard, P. J.

The action is one for breach of warranty, given on the sale of a team of horses by defendant to plaintiff. The warranty was in writing, and was that the team was “sound and kind in every respect.” The warranty being undisputed, the sole question litigated on the trial was whether there was a breach. It is proven that on the very first occasion the horses were used by the plaintiff one of the horses put down his head without cause, and rushed away to one side of the road, and barely escaped running into another carriage. The same horse subsequently, and with the same driver, again, without cause, “ plunged across the road. ” The team in both instances was managed by a careful and skillful driver. When the team arrived at. plaintiff’s residence, and his family had gone into the house, and the team started for the barn, the same horse again made a sudden turn to the side of the road. It was further proven that during the month of May, 1888, shortly after the purchase of the team, the horse again plunged to the left, while plaintiff and his family were in the carriage, and then barely escaped running into another carriage. The unkindness of the horse was proven by other witnesses, on other occasions. They all considered the team unsafe to drive, and, if the facts testified to are to be credited, the horse was obviously vicious and ungovernable, and unsafe to be used as a family team. The defendant does not deny the inference to be drawn from the evidence, but claims that it does not show unkindness at the time of the sale. When the actions of the horse, showing a bad, ungovernable temper, are shown so soon after the sale, and continue, and are without reason, the jury were entitled to take the evidence of subsequent conduct as evidence of previous unkindness. The defendant gave evidence tending to show the fact that the driver was unkind. The jury have passed upon the question, and the finding is in favor of the positive evidence of facts showing a breach of warranty. The judgment should therefore be affirmed, with costs.  