Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-07-02
LAW COURT DECISION.
New Trial Granted in Case of G. W..
Brown VS.. Jonas Edwards.

The law court, through Justice Pea
body. handed down, on Tuesday, re-
script in the Penobscot county case of
George w. Brown VS.. Jonas Edwards,
ct al. 1t is az follows:
Rescript. Peabody, ]. Assumpsit to
recover the price paid for a horse sold
and delivered to the plaintiff after re-
cession of the sale for breach of war;
ranty.
The case came before this 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 war
ranted the horse sound, except as 10
quarter cracks in the forward feet, and
that it was at the time of the sale I'M
sound by being affected with disease
called whistling.
The horse was purchased for the de-
PENDANT just previous to the sale to the
plaintiff by an experienced buyer, who
applied the usual tests to determine its
soundness and discovered no evidence
of whistling, and the defendant, max
ing use of similar tests, and parties
who used the horse in hauling coal fall
ed to notice such defect.
After the sale to the plaintiff the
horse was for weeks under the casual
observation of experienced horsemen,
and to them it appeared in good condi-
ton. Afterward it was sold by the
plaintiff to one Smith, who was famil-
lar with horses, and his examination
failed to disclose unsoundness in re-
spect to the horses breathing until he
was driving it home, a distance of II
miles, when the whistling became so
manifest that he returned the horse.
and the price which he had paid was
refunded. The plaintiff thereupon
shipped it back to the defendant by
rail with notice to him of his recession
of the sale. When removed from the
car the horse was found to be SICK ana
uuon the advice of a veterinary sur
geon, was chloroformed. The sale was
made January "a, 1901, and the recess
sion, March 30. 1901.
1t appears by the evidence that the
disease was not known to the parties
Or any of the witnesses during period
of nearly two months; that within a
few days after it's symptoms were rec
ognzed it resulted fatally.
The plaintiffs theory is that the dis
ease existed at the time of the sale and
warranty in its primary stage, induced
either by acute larangytis or by paral-
ysis caused by working in AN ill-ftting
.ollar, and that it had not become suf-
ficiently developed to attract attention
of himself or those about his stable
until after the sale to Smith. He re-
lied upon the testimony of the experts
to show that if the horse was not driv-
an fast or loaded heavily no person
could tell whether he was whistler or
not. And he claims that the condition
IF the weather was such that there had
been no opportunity or occasion to use
the horse in q way to develop symp-
toms of the disease.
The defendants theory is that the
disease was contracted while in the
possession either of the plaintiff or
|Smith from exposure in severe wealth
ar or contagion. And he relies upon
the fact that the horse was taken from
close stable and actually used in
hauling snow and subsequently driven
I, considerable distance to Smiths
home, and upon the further fact that
when the horse was returned to him. it
oore evidence of having taken sud-
len cold or of being affected by some
other malady in an acute form incon-
sistent with the plaintiffs theory of
the gradual development of the dis
|eas.
This court has the same opportunity
as the jury to weigh the evidence, and
it seems obvious that the jury must
have reached their conclusions by ref
erences not consistent by facts proved.
Motion sustained. New trial granted