Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-07-02
s NEW TRIAL GRANTED.
Exceptions Sustained in a Penobscot
Horse Case.

The following rescript has been handed
down from the law court by Judge Pea
body 1t is a Penobscot county case, that
of George w. Brown VS.. James Edwards,
ct al.
Assumpsit to recover the price paid for
| horse sold and delivered to the plaintiff
after recession of the sale for breach OF
warranty.
| The case came before the court on the
defendants motion for a new trial.
The evidence consisted principally of
testimony not discredited or conflicting
And the jury by their verdict must have
found that the defendant warranted the
| horse sound, except as to quarter cracks
in the forward feet, and that it was at the
time of the sale unsound by being effected
with a disease called whstling.
The horse was purchased for the de-
PENDANT just previous to the sale TO the
plaintiff by an experienced buyer, who APP
| Piled the usual tests to determine its
soundness and discovered no evidence of
| whistling, and the defendant, making use
| OF similar tests. and parties who used the
horse in hauling coal failed to notice such
defect.
| AItcF the safe 10 the plilHtlll lllc morse
| was for weeks under the casual observa-
ton of experienced horsemen, and to them
it appeared in good condition. Afterward
it was sold by the plaintiff to one Smith.
| who was familiar with horses, and his
| examination failed to disclose unsound-
ness in respect to the horses breathing
until he was driving it home, distance OF
twelve miles, when the whistling became
| SO manifest that he returned the horse,
and the price which he had paid was re-
| funded. The plaintiff thereupon shipped
| it back to the defendant by rail with no
| tice to him of his recession of the sale
| When removed from the car the horse
was found to be sick and upon the advicl
of a veterinary surgeon was chloro-
| formed. The sale was made January 2l
1901 and the recession March 80, 1901.
1t appears by the evidence that the dis
ease was not known to the parties or any
of their witnesses during q period OF
nearly two months; that within few
days after it's symptoms were recognized
it resulted fatally.
The plaintiffs theory is that the diseas,
existed at the time of the sale and war
ranty in it's primary stage, induced eithe
by acute larangytis or by paralysis
caused by working in an ill-fittinG collar
and that it had not become sufficient,
developed to attract the attention of him
self or those about his stable until afte
the sale to Smith. He relied upon tn
testimony of the experts to show that i
the horse was not driven fast or LOADED
heavily no person could tell whether h
, was whistler or not And he claims tina
, the condition of the weather was Sucl
, that there had been no opportunity 0
velop symptoms of the disease
The defendants theory is that the dis
ease was contracted while in the posses
} sion either Of the plaintiff or Smith iron
, exposure in severe weather or conta gioll
! And he relies upon the fact that the hors
) was taken from q close stable and actu
: ally used in hauling snow and subsequent
ly driven considerable distance t
D Smiths home, and upon the further fac
/ that when the horse was returned to him
a it bore evidence of having taken sud
D GrM cold or of bcing affected by some 9th
with the plaintiffs theory OF the gradua
/, development Of the disease.
. This court has the same opportunity q
y the jury to weigh the evidence, and
D seems obvious that the jury must hay
y reached their conclusions by reference
y not consistent by facts proved. Motto
D sustained. New trial granted.