#### Kuehn vs. Wilson.

Where a complaint does not show with sufficient certainty the cause of action relied upon, the proper remedy of the defendant is by a motion to have the complaint so amended as to render it certain.

When skill and care are required in the performance of an act, a person who professes to hare such skill, and undertakes for hire to perform the act, is bound to do it in a skillful and proper manner.

A complaint against a farrier alleged that he undertook, for reward, to castrate a colt for the plaintiff, and do it in a skillful manner, and warrant the colt “to do well and get well;” but that he performed the act in an unskillful manner, in consequence of which the colt died: *Held,*that the action was for a breach of the implied obligation or duty to perform the undertaking properly.

This court will not reverse a j udgment because a part of the instructions to the jury in the court below were lacking in legal precision, if it appears that the true issue between the parties was fairly submitted to the jury, and no error committed to the prejudice of the appellant.

Where the testimony of the parties to a suit, each of whom is a witness in his own behalf, is conflicting, and neither is supported by other evidence, the jury *105’ must determine which is entitled to the greater credit; and an instruction “that so far as the testimony thus conflicts, the plaintiff must fail,” was properly refused.

Where the evidence was conflicting, this court will not disturb a judgment on the ground that the evidence did not support the verdict, unless the verdict was strongly overborne by the evidence.

APPEAL from tbe County Court of *Dane*County.

Tbe complaint was in substance, tbat tbe defendant promised tbe plaintiff for a certain reward, to castrate a colt belonging to bim, and “ do it in a skillful manner, and warrant tbe colt to do well and get well in a few days,” but tbat be castrated it in an unskillful manner, in consequence of wbicb it died, to tbe plaintiff’s damage, &c. Tbe defendant admitted tbat be castrated tbe colt, but denied eyery other allegation in tbe complaint.

Tbe plaintiff testified tbat tbe defendant, when sent for to perform tbe operation, went to tbe lot where tbe colt was, and said be would warrant bim, and after it was performed, said be would warrant tbe colt would be well in three days. Tbe plaintiff paid tbe defendant one dollar for bis services. Any proof of a warranty was objected to by tbe defendant, but tbe obj ection was overruled. Tbe defendant testified tbat be did not warrant tbe colt. Tbe proof was, tbat tbe colt died in a few days, but whether its death was owing to tbe un-skillfulness and want of care of tbe defendant, or to some other cause, tbe evidence was conflicting. One witness testified, tbat several days after tbe operation bad been performed, tbe defendant told tbe plaintiff be would warrant the colt to be well in two or three days.

Tbe judge charged tbe jury tbat this was an action “for breach of warranty on tbe castration of a colttbat “ in cases of this kind, tbe law implies a warranty to act skillfully on tbe part of tbe operatortbat *“*it was not necessary tbat tbe defendant should say ‘ I warrant,’ but be must use words to tbat effect. If tbe general tendency of bis assurances was such as to make a warranty, tbe jury should find there was one; and if tbe defendant warranted tbe colt, be is liable in this action.” Tbe defendant asked tbe court to instruct tbe jury, “ 1. Tbat if tbe testimony of tbe plaintiff and defend*106ant corL^cts regar^ to tbe warranty, and neither is cor-by other testimony, so far as that testimony so conflicts, the plaintiff must fail. 2. That if the jury find that the pretended warranty was made after the castration was completed, and without a new consideration, then such warranty was without consideration and void. 3. That, although the jury should find that the defendant did warrant the colt to do well and get well, yet if they believe, from the evidence, that the colt died from any other cause than improper castration, and aside from the defendant’s acts, then the warranty would not cover the loss,- and the plaintiff cannot sustain the action on the warranty. 4. That unless the jury find that there was a warranty by the defendant, for which he received a consideration, such a warranty is a naked contract and not binding on him.” The court gave the third instruction asked, and refused the others.

Yerdict for the plaintiff. A motion by the defendant fora new trial, on the grounds that the verdict was not supported by the evidence, and that the court erred in its general charge, and in its refusal to give the 1st, 2d and 4th instruction asked by him, was overruled. Judgment on the verdict.

*Welch & Lamb,*for appellant,

argued that the complaint contained, improperly joined in a single count, two distinct causes of action, and that the court should have compelled the plaintiff to elect for which he would proceed, (R. S., chap. 125, secs. 29, 30; 4 How. Pr. R, 226, 228; 9 id., 251, 378, 436; 10 id., 361; 4 Abb. Pr. R., 202); that the court erred in admitting evidence of what was said by the defendant several days after the service was performed; and that the court erred in making no discrimination in its charge between a naked warranty and one for which there was a consideration, and in refusing to give the instructions asked by the defendant.

*Walceley & Tenney,*for respondent,

contended that the warranty set up in the complaint was such a warranty as the law implies, and therefore the plaintiff could recover without proof of an express warranty *{Bird vs. Mayer,*8 Wis., 362); and that the instructions asked by the defend*107ant were bad, because based upon a different theory of the case.

November 19.

*By the Court,*

Cole, J.

Although the complaint in this case is not very artistically drawn, yet, as we understand it, the action is for an injury arising from an unskillful and improper castration of a colt, in consequence of which the animal died. It is true, there is some language in the complaint which would lead one to suppose that the pleader intended to found the action upon an express warranty that the colt “would get well and do well,” and not for a neglect or breach of an implied warranty or duty in performing the undertaking; but if the whole complaint is examined it will readily be seen that the action is for a breach of a common law duty resulting from the facts therein stated. There can be no doubt at all about the principle of law, that when skill and care are required in performing an undertaking, and a party professes to have skill in the business, and undertakes for hire to do it, he is bound to perform it in a skillful and proper manner. In such a case a party is understood to have engaged to use a degree of diligence and skill adequate to the due performance of his undertaking. Thus in this case, when the appellant undertook to castrate the colt, holding himself out to the world as a farrier competent for such business, he was then bound to apply a reasonable degree of skill to the service, and if through his ignorance or bad management in performing the operation, the colt died, he is answerable for the loss. These principles of law are too familiar to need the citation of authorities to establish them, and were not controverted at all upon the argument by the counsel for the appellant. But he insisted that as the complaint joined two distinct and inconsistent causes of action, one upon an express contract or warranty, the other for a breach of an implied warranty, no proof should have been admitted under such a complaint until the respondent had elected, for which cause of action he was intending to proceed. But as we think the complaint shows with sufficient certainty that the action ¡was for unskillfully castrating the colt, and as the whole record shows that the cause was *108tried upon 'that theory, tbis objection cannot be maintained. . If tbe complaint was not sufficiently certain, tbe remedy was by motion to tbe court to have it made, more certain; but it sets out substantially an action on tbe case under tbe old practice, and appears to have been tried in that light by tbe parties, and will now be so considered.

Tbe principal errors complained of are those which arise upon tbe instructions given tbe jury, and tbe refusal of tbe county court to give certain instructions asked for on tbe part of the appellant. Tbe general charge may be open to some criticism, for not stating with entire fullness and legal precision tbe principles of law applicable to an action on tbe case, and one upon an express warranty; but we do not think it could have misled tbe jury to tbe prejudice of tbe appellant. If tbis case contains tbe whole charge as given, we should say that tbe county court failed to discriminate between an express warranty that tbe colt would “ do well and get well,” and that legal obligation which tbe law will imply, to do tbe act with reasonable care and skill. Eor in telling tbe jury what constituted an express warranty, tbe court did not make it out to be anything more than such a warranty as tbe law would imply from tbe nature of the undertaking. Tbis is clear from tbe third special instruction asked for on tbe part of tbe appellant, and given by tbe court, which was in these words: “ That although tbe jury should find that tbe defendant did warrant tbe colt to do well and get well, yet if tbe jury believe from tbe evidence that tbe colt died from any other cause than improper castration, and aside from tbe defendant’s acts, then tbe warranty would not cover tbe loss, and tbe plaintiff cannot sustain tbe action on tbe warranty.”

Now an express warranty that tbe colt would get well, would render tbe appellant liable for tbe loss of tbe colt, whether be died from improper castration or from some other cause. Tbe common law liability would require him to perform tbe operation with reasonable skill and care, nothing further. An express warranty that tbe colt would get well, would be an absolute engagement to make good tbe loss, if tbe colt died without neglect from any one. Tbe *109warrantor would take tbe chances and hazards of weather, intervening disease, &c. As already observed, this action - was tried all the way through, as if the gravamen of the complaint was unskillful and improper castration. This issue appears to have been substantially left to the jury. And although the county court did not state accurately to the jury the nature and extent of an express warranty that the colt would do well and get well, still we do not feel that we should be authorized in reversing the judgment for that reason. The real issue, the real point in controversy, viz: unskillful castration, seems to have been fairly submitted to the jury. And for a like reason we think the judgment ought not to be reversed for the refusal of the court to give the second and fourth special instructions asked. These instructions were applicable to an express warranty. The respondent did not attempt to recover upon that ground. His evidence did not tend to establish such a case. The court, in telling the jury what the contract of express warranty was, made it out to be nothing more than an undertaking to answer for any loss sustained in consequence of want of reasonable care and skill. This was what the law would imply. We therefore think those instructions, under the circumstances, became immaterial.

It was for the jury to weigh the testimony of the parties, and determine which was entitled to the greater credit; and therefore the first instruction was properly refused.

Upon the whole evidence in the case, we are satisfied the jury must have found that the colt was unskillfully and improperly castrated, and we must, therefore,' affirm the judgment. Whether we should have arrived at the same result, it is unnecessary to state. We could not disturb the verdict unless it were strongly overborne by the testimony:

The judgment of the'county court is affirmed,