
    Proctor v. McCoid et al.
    1. Sale of Horse: breach op warranty and fraud: evidence. In an action for breach of warranty and fraudulent representations in the sale of a glandered horse, as well as for the loss of another horse which contracted the glanders from the horse sold, there was no error in the admission of evidence which tended to show that the purchaser believed, when he bought the horse, that he had the glanders. Such testimony was not immaterial.
    2. Practice: evidence: exclusion of: error without prejudice. The exclusion of testimony which, under the instructions given by the court, could not, if admitted, have strengthened appellant’s case, was not reversible error.
    3. -: instructions. It is not error to refuse an instruction asked which is fully covered by another instruction given.
    4. -: error without prejudice. When it appears from the verdict of the jury that the giving of an instruction, though erroneous, could not have affected the verdict, the error in giving the instruction is no ground for a reversal of the cause.
    5. Verdict: evidence to support. When the evidence is conflicting, this court will not set aside a verdict as not being supported by the evidence.
    
      Appeal from Pottcmattarme Circuit Cowrt.
    
    Friday, December 8.
    The plaintiff commenced an action against the defendants, alleging tbat tbe defendants sold and delivered to plaintiff, and warranted to be sound, a certain borse which had the glanders, and which died of said disease soon after it came into the possession of the plaintiff. In the second count of the petition it is alleged that the horse, so sold by the defendants to plaintiff, communicated said disease to a certain other sound horse owned by plaintiff, which also died of said disease. The defendant, McCoid, filed a cross-petition against •his co-defendant, John Rief, alleging that he sold to Jos. McCoid the horse referred to in the first count of plaintiff’s petition, and warranted and falsely represented him to be sound, wlien lie knew Mm to be unsound and infected with a disease of wbicb be afterward died. Tbat tbe horse so sold by Rief to McCoid communicated tbe glanders to a certain other sound horse owned by McCoid, of wbicb disease it also died. Tbat prior to tbe death of said horses McCoid bad sold them to one J. C. Proctor for $200, no part of wbicb has been paid, and wbicb sum was secured by a chattel mortgage upon said horses, and in no other way. Tbe defendant Rief denied all tbe allegations in tbe cross-petition of McCoid. The cause was tried to a jury, as to tbe issues between Rief and McCoid, and a verdict was returned in favor of Reif. McCoid appeals.
    
      Sapp cfi Lyman, for appellant.
    No argument for appellee.
   Day, J.

I. Evidence was introduced tending to prove tbat tbe trade of tbe horse in question from Rief was negotiated between Rief and one Powell, as McCoid’s 5 agent, and tbat, before tbe trade was consummated by delivery, McCoid saw tbe horse and said be didn’t suit, tbat be did not like tbe appearance of running at tbe nose, and tbat otherwise tbe horse would suit very well if be knew be was sound, and tbat Rief then warranted tbe horse to be sound and all right, except tbat be bad a cold. Upon cross-examination the following question was then asked: “As a matter of fact, then, Mr. McCoid, when you asked him to warrant tbe horse as sound, you then believed from symptoms tbat he bad tbe glanders.” This question was objected to as immaterial and not cross-examination. The objection was overruled and tbe witness answered: “Was afraid be bad.” Tbe admission of this evidence is assigned as error. It is claimed tbat tbe question is not cross-examination because it does not relate to any part of tbe examination in chief. It does have direct reference to what McCoid testifies in chief be discovered respecting the condition of the horse. It is further insisted that the testimony is immaterial, because, if Rief warranted the horse, McCoid’s belief as to his soundness could not affect his recovery. McCoid, however, grounds his claim upon false and fraudulent representations as well as a warranty, and to recover upon that ground of his claim he must show that he relied upon the representations. Further, McCoid claims damages for the death of another sound horse to which disease was communicated by the horse he bought of Rief. His right of recovery upon this branch of the case would be very materially affected by his knowledge of the diseased condition of the horse which he purchased. There was, in our opinion) no error in admitting this evidence.

II. Appellant assigns as error the exclusion of the note given to him by Proctor on the purchase of the horses. It is claimed that by this ruling the appellant was precluded from showing his interest in the sub- . r, . ject matter. Put the appellant was allowed to introduce the chattel mortgage on the horses for $200, and he testified that he sold them to Proctor for $200, and that he had never received any pa/ for them. Besides, the court instructed the jury that the fact of the sale of the team by McCoid would not affect his right to recover of Rief. Under these circumstances, it is apparent that the rejection of the note could not have worked the appellant any prejudice.

III. The appellant assigns- as error the refusal of the court to give the first instruction requested by him. This instruction is fully covered by the third instruction gjven fty the court on its own motion.

IV. It is insisted that under the instructions the right of appellant to recover for the sound horse owned by him, which he alleges was diseased by the horse bought Rief, was made to depend upon his ownership of the horse at the time the disease was communicated. The jury, however, did not find the appellant entitled to recover for either horse. They must, therefore, have found that there was a failure of proof of the warranty or the false representations. If it should be conceded that this instruction was, as to the sound horse, erroneous, still it is clear, in view of the general verdiet for Riefj that the error was without prejudice.

Y. It is insisted that the verdict is not supported by the evidence. The evidence is conflicting and does not warrant our°disturbing the verdict.

Affirmed.  