I concur in the reversal, but am constrained to the belief that a new trial should be awarded, instead of a judgment directed on the interrogatories. There is evidence that one cow, some two years after appellee purchased her, became a breeder. There is evidence that it was known to appellant, that the purchase was made for the purpose of shortly holding a sale of the stock for breeders, and in view of abortion of one cow she was not offered for sale, and could not have been safely sold for the purpose for which she was purchased. There is also evidence, that abortion may have arisen from injury, though the jury find that it was from contagious abortion.
The jury found, in answer to interrogatories, that the cow was valued by the parties, at the time of the purchase, at $750, and that she was of that value, and that she would have been of that value if she had not aborted.
It seems clear to me that the answers of the jury are predicated on a value for breeding purposes only, and in view of the explicit evidence that the cow did not breed for two years, and of some evidence that she was only of the value of $40 or $50 during the time she did not breed, or in case she had been exposed to aborters, there is some ground for support of the answer of some failure of consideration, or some breach of warranty, and that justice will be better subserved by granting a motion for a new trial, upon the authority of Lake Erie, etc., R. Co. v. Hennessey (1912), ante, 64. See, also, Matchett v. Cincinnati, etc., R. Co. (1892), *220132 Ind. 334, 31 N. E. 792; Shorter v. Pennsylvania Co. (1892), 130 Ind. 170, 29 N. E. 775; Elliott, App. Proc. §563, and cases cited; Buskirk’s Practice 334.
Note.—Reported in 96 N. E. 586 and 97 N. E. 530. See, also, under (1) 38 Cyc. 1927; (2) 35 Cyc. 418; 53 Am. Dec. 173; (3) 38 Cyc. 1923.