Action for breach of warranty that two heifers sold by the defendant to the plaintiff were sound and free from communicable diseases. The case comes forward to this court on general motion after a verdict for the plaintiff in the sum of one thousand dollars ($1,000).
The record disclosed conflicting testimony as to what was said by the defendant at the time of the sale, but, after careful examination and consideration of the printed record, we see no reason to disturb the findings of the jury that there was such a warranty as claimed by the plaintiff.
Nor do we deem it necessary to go into the details bearing on the question as to whether or not there was a breach of that warranty.
Prior to the purchase of the two heifers from the defendant on October 11, 1928, the plaintiff had never had a case of contagious abortion in his herd. Thereafter, as disclosed by the record, many calves were lost by reason of premature birth, and injury to the herd itself necessarily resulted. A careful weighing of all the testimony bearing on that phase of the case satisfies us that the jury was justified in finding that there was a breach of warranty and that the loss suffered by the plaintiff was due to contagious abortion communicated to his herd from the heifers purchased of the defendant. The verdict of the jury should not be disturbed as to this finding.
Nor do we see any reason to set aside its conclusion as to the amount awarded. No exception was taken to any portion of the Judge’s charge relating to damages, or otherwise, and we have a right to assume that full instructions were given as to all elements which might enter into the determination of the amount to be awarded as compensation for the plaintiff’s loss.
P. A. Hasty, B. W. Blanchard, for plaintiff. P. A. Smith, E. P. Murray, for defendant.The entry must be, Motion overruled.