Charles Dennis, Respondent, v. Rollin Coman, Appellant

Charles Dennis, Respondent, v. Rollin Coman, Appellant. (Argued September 16, 1874; decided January term, 1875.) This was an action for a breach of a warranty of soundness in the sale of a horse. The complaint, after setting forth'the warranty and the breach, contained this allegation : “ That subsequently thereto the said defendant, his agent and servant, in attempting to cure the disease of which the said horse was affected caused the said horse to die.” It appeared on the trial that the horse had an ulcerated tooth which had affected the bone of the jaw; that defendant, upon being notified, stated that the tooth could be extracted and the bone cured, and directed the horse to be sent to his stable that the needful operation could be performed. Plaintiff assented, provided defendant would assume the entire responsibility. . The defendant agreed, saying he would return the horse cured and sound or refund the price. The horse was sent and in the attempt to perform the operation was hurt and died in consequence. Upon the trial defendant claimed, that under the complaint plaintiff could only recover the damages for the breach of warranty, i. e., the difference in value of the horse if it had been sound and as he was. The referee allowed the complaint to be amended so as to conform to the facts proved., To this defendant’s counsel objected. No question was made as to the power of the referee, if the amendment was proper to be made by the court. Judgment was given for the price paid for the horse. Held, that the complaint was sufficient to indicate the character of plaintiff’s claim and to allow the proof, but that the amendment, if required, was proper. James M. Smith for the appellant. Samuel Hand for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for affirmance. All concur. Judgment affirmed.