#### Witt, Appellant, vs. Voigt, Respondent.

*February 23*

March *14, 1916.*

*Animals: Evidence as to habits: Sales: Warranty: Breach: Offer of evidence: Sufficiency.*

1. If it be established that an animal of mature age did not, up to a certain time, have a certain habit, that fact tends to cast doubt upon evidence that shortly thereafter it did have such habit.

.2. Thus, in an action for breach of a warranty by defendant that a horse sold by him was kind and gentle and would not kick or bite, there being evidence for plaintiff that the horse kicked, bit, and was vicious after the sale, it was error to exclude testimony offered by defendant to show that prior to the sale the horse was not vicious and did not kick or bite.

.3. A statement by defendant’s counsel in such case to the effect that he had witnesses in court who were familiar with the horse before it was sold and who would testify that it did not kick, bite, or act viciously while defendant had it, whereupon the court informed him that such evidence would not be received, was a sufficient offer of the evidence under the circumstances.

*569Appeal from an order of tbe circuit court for Milwaukee county: W. J. TubNee, Circuit Judge.

*Affirmed.*

Action begun in tbe civil court to recover damages for-breach of warranty in tbe sale of a borse. Upon a general verdict for plaintiff'in tbe sum of $152.07 tbe civil court entered judgment and tbe defendant appealed. Tbe complaint alleged that tbe “defendant warranted and represented to tbe plaintiff tbat said borse was kind and gentle and would not kick or bite, and tbat tbe same was a suitable borse for said plaintiff for use in bis said business as a painter.” It is further alleged “tbat at tbe time of said sale and warranty said borse was not kind and gentle, but on tbe contrary was vicious, and tbe borse was not one tbat would not kick, but on tbe contrary was addicted to kicking, and restive and ungovernable whenever tbe plaintiff attempted to place a harness upon said horse.” Tbe plaintiff showed by bis own testimony and tbat of several others tbat tbe warranty was made, and showed by like testimony tbat tbe borse kicked, bit, and was vicious.. Defendant sought to show by five witnesses who would testify to their familiarity with tbe borse preceding tbe sale tbat this borse was not a vicious borse, a kicker, or biter, but tbe testimony was excluded by tbe trial court on tbe ground tbat if' there was a warranty as alleged in tbe complaint and supported by proof, then it was immaterial what tbe borse bad been before sale, because tbe warranty related to tbe future and there was tbe evidence of eye-witnesses to tbe fact tbat it did kick and bite and act viciously in tbe possession of plaintiff ; and if there was no warranty no cause of action remained. Because of the exclusion of such evidence tbe circuit court ordered a new trial, and plaintiff appealed.

*William J.*Morgan, for tbe appellant.

For tbe respondent tbe cause was submitted on tbe brief of Lenicheclc, Robinson> *Fairchild <& Boesel.*

ViNJE, J.

Tbe gist of plaintiff’s argument is tbat since tbe jury found a warranty and found a breach thereof it ia *570immaterial what bad been the habits of the horse in the past as to biting and kicking; that since it was established that the horse did kick and bite while in plaintiff’s possession, proof of the fact that it did not do so while defendant had it would not relieve him of liability on his warranty that the horse would not kick and bite. This argument is sound assuming that it is admitted or established beyond controversy that the horse did, without any fault on plaintiff’s part, kick and bite while he had it. Animals, however, like human beings, have habits or propensities more or less fixed and enduring. Therefore, if it be established that an animal of mature age up to a certain time does not have a certain habit, such fact fends to cast doubt upon evidence that shortly thereafter it did have such habit. In fact the only way to rebut evidence that the horse kicked and bit upon certain occasions while in plaintiff’s possession, by others than eye-witnesses to those •occasions, would be by evidence of the horse’s previous good conduct in that respect. The probative force of such evidence would be for the jury. It might be of such character as to wholly discredit the evidence of those who testified they saw it bite and kick, or it might satisfy the jury that if the horse did bite and kick the fault lay with the plaintiff in the manner in which he handled it. In either case no recovery could be had. The defendant should have been permitted to put in this defense and the circuit court properly granted a new trial because of its exclusion. *Kavanaugh v. Wausau,*120 Wis. 611, 98 N. W. 550.

Some point is made that a proper offer of evidence was not tendered by the defendant. A careful perusal of the colloquy between court and counsel establishes the fact that defendant’s counsel said in substance that he had witnesses in court who were familiar with the horse before it was sold and who would testify that it did not kick, bite, or act viciously while defendant had it, whereupon the court informed him *571that such evidence would not be received. This was a sufficient offer under the circumstances.

This appeal was taken before the amendment of 1915 declaring orders for new trials upon appeals from the civil court nonappealable.

*By the Court.*— Order affirmed.