Suit by Hogh, against Millison. There were two counts in the complaint; one alleging a breach of warranty in the sale of a yoke of oxen; the other alleging false and fraudulent representations made by the defendant to the plaintiff, in reference to the oxen •
Issue; trial <by jury; verdict and judgment for the plaintiff. A new trial was asked, on the ground of excessive damages ; that the verdict was not sustained by the evidence; and for error of law occurring at the trial, in this, to wit: “the Court erred in instructing the jury as follows: ‘If the jury find from the evidence, that in the sale of the cattle, by MUli'Son to Ilnch, the defendant was guilty of a fraud upon Ho oh i the jury may assess exemplary, or smart damages, in addition to compensatory, or actual damages proved.’ ”
The instruction, thus given, was applicable to the second count in the .complaint, which alleged, that at the time of the sale of the cattle, “the defendant, well knowing the premises, and intending to cheat and defraud the plaintiff, in said sale, falsely and fraudulently affirmed, and represented to him, that the cattle were gentle,” &c., (here follow the representations, which are averred to have been false;) “all of which,” it is averred, “was well known to the defendant at the time he made said representations.”
The instruction given, we think, is sustained by the case of Taber v. Hutson, 5 Ind. 322. The rule was there recognized, that where the offense is not punished by the criminal law of the land, and “whenever the elements of fraud, malice, gross negligence or oppression, mingle in the controversy, the law, instead of adhering to the system, or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages.”
There is another instruction discussed in the brief of counsel for the appellant, but as it was not brought to the *229attention of tbe Court below, in the motion for a new trial, we shall not notice it. The language of the reasons for a new trial, excludes the idea that any instruction was complained of, except the one there set out.
D. D. Pratt and P. P. Baldwin, for the appellant, i?. P. Pykernan, for the appellee.We cannot reverse the judgment on the evidence, as that tends to support the verdict.
Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs.