Trumbull County. What difference is there between leaving a horse unhitched in the street and leaving this covering in the middle of the sidewalk unanchored! None whatever. In the opinion in Harriman v. Railway, supra, it is said, page 35: "In the latter case, Lane v. Atlantic Works, the defendant carelessly left a truck loaded with iron on a public street in Boston. The iron was so negligently placed on the truck that it would easily fall off. The plaintiff, a boy seven years old, was walking along the street, when he was called by another boy twelve years old, to come over and see him move the truck. The plaintiff went over and stood near the truck while the other boy was attempting to move it. In consequence of the motion thus given the truck by the other boy, the iron rolled off and injured the plaintiff's legs. Colt, J., in the opinion of the court, disposes of the question now under consideration as follows: 'In actions of this description the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged. But it will not be considered too remote, if according to the usual experience of mankind the result ought to have been apprehended. The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.' In that case it was held immaterial whether the act of the boy in moving the truck and thus causing the iron to fall upon the plaintiff was mere negligence or voluntary wrongdoing." Judgment of common pleas court affirmed. Palmer v. Cowie. ERROR-EVIDENCE-PRACTICE. [Lorain (8th) Circuit Court, October 6, 1905.] B. H. PALMER & SON V. CHARLES COWIE. 1. VERDICT NOT REVERSED UNLESS CLEARLY AGAINST WEIGHT OF EVIDENCE. To reverse a verdict on the ground that it is against the weight of the evidence, it must be found that it was so clearly so that unbiased, unprejudiced minds could not, from the evidence adduced, have reached the conclusion which was reached by the jury. 2. TESTIMONY THAT WITNESS WAS JURYMAN IN FORMER TRIAL OF Case, not COM. PETENT TO ENHANCE HIS TESTIMONY. In an action to rescind a contract of sale and recover the purchase price, on the ground of a breach of warranty, it will be incompetent to show, for the purpose of enhancing the value of his testimony that a witness called to testify as to the chattel in question was a juryman in the trial of the same case in a justice's court. 3. TO RESCIND CONTRACT FOR BREACH OF WARRANTY, PARTIES MUST BE PLACED IN STATU QUO. In such case, the refusal of a charge is not erroneous, which failed to instruct the jury on the material point that in order to rescind a contract for a breach of warranty, the vendee must offer to place the vendor in statu quo by the return of the property in question, without injury to it, caused by his negligence. 4. CHARGE TO JURY UPON QUESTION OF WARRANTY MUST EXPLAIN LAW OF Patent AND OBVIOUS DEFECT. An instruction to the jury upon the question of a warranty of soundness, etc., which fails to state that patent and obvious defects which can be discovered without the use of any particular skill or knowledge are not to be considered as a breach thereof, is erroneous. 5. TAKING OF NOTES BY JUROR, BEFORE ADMONISHMENT, NOT PREJUDICIAL MISCON DUCT. The taking of notes by a juror during the course of a trial, which, however, was discontinued upon admonishment by the court, is not misconduct for which a new trial will be granted. 6. HORSE DEALER, NOT A VETERINARIAN, MAY TESTIFY AS TO PATHOLOGICAL CONDITION OF HORSE. A person who has been in the habit of buying and selling horses all his life and has in fact made that his business, and who testified that he had seen hundreds of sweenied horses, although not a veterinarian, will be permitted to give his opinion as to the soundness of a horse alleged to have been sweenied. 7. EXCLUSION OF TESTIMONY AS TO PURPOSE OF EXAMINATION OF CHATTEL BY WIT NESS, NOT ERROR. The exclusion of testimony by a witness called to testify as to the soundness of a horse, concerning his purpose in making the examination, is not erroneous, as it is the result of his examination and not the purpose of it, that is material to the issue. ERROR to Lorain common pleas court. Lorain County. D. J. Nye and C. J. Kenny, for plaintiffs in error. MARVIN, J. Suit was brought by Palmer & Son against Charles Cowie before a justice of the peace, and thereafter appealed to and tried in the court of common pleas, where it resulted in a verdict and judgment for the defendant. By proper proceedings the case is now here for review upon petition in error filed by the plaintiffs below. A bill of exceptions is filed in this court containing all the evidence given or offered at the trial, and it is urged that errors prejudicial to the plaintiffs are manifest upon this record. The action was based upon the claim that on May 9, 1904, plaintiffs purchased a mare from defendant, and paid for her the agreed price of $145; that at the time of such purchase the defendant warranted her to be sound in every way; by reason of which warranty, plaintiffs were induced to make the purchase and pay the money; that the mare was in fact unsound when such purchase was made, in that she was hoofbound and was badly sweenied in both shoulders, and upon being shod the same day became very lame on account of such unsoundness; that the plaintiffs within four days of such purchase returned the mare to the defendant and tendered her to him, demanding a return of the money; that the defendant refused the tender and refused to return the money; that plaintiffs were put to an expense of $30 in keeping and caring for the mare. The prayer is for judgment for the said purchase price and for said $30 so expended on the mare. For answer the defendant admitted that he sold the mare to plaintiffs for $145 and denies all the other allegations of the petition. It will be noticed that the plaintiffs based their action upon the rescission of the contract and not upon a claim for damages for breach of warranty. Upon the facts stated they might have sued either way, that is, they might have retained the mare and sued for the breach or sued upon rescission as they did. Had they sued for the breach, they would of course have made the additional averment, that they were damaged in some certain amount by reason of such breach. One of the errors complained of is, that the verdict is against the weight of, and contrary to, the evidence. To reverse on this ground, we must find that the verdict was clearly against the weight of the evidence. So that unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury. It is not claimed by the defendant that he did not practically warrant the mare to be sound. He says in his testimony that he told Pal Palmer v. Cowie, mer at the time of the purchase, "That the mare is sound from anything I know. I raised her, and it seems I ought to know." Again, he testifies that Palmer asked him if the mare was ever sweenied, and he answered, "No, sir, them shoulders are the same as they always were, from a colt." The defendant, however, claims, that what he said about her was true, and on this issue the jury must have found with him, unless they found that whatever unsoundness there was, was so patent that, no representation about it, could have misled anyone. There is evidence tending to show that there was a peculiarity about the shoulders of this mare that was noticeable and that attention was called to this at the time of the purchase, when Cowie declared that the mare was not sweenied. There is evidence tending to show that the mare was sweenied at the time she was sold, and there is evidence also tending to show she was not. Fred Rowland, a witness for the defendant, though not a veterinary, shows that he has bought and sold and examined many horses-he says he has purchased and sold at least one hundred and fifty horses within the last five years. He examined the mare at the blacksmith shop on the day of the sale; he says her shoulders were a trifle narrow, but she was not sweenied. Orrin Babcock looked the mare over a few days before the sale and noticed her shoulders were thin, but says she was not sweenied. Stanley Wilcox examined the mare two days before the sale,-the sale having been on Monday, he examined her on the Saturday before,and noticed the shoulders, but says she was not sweenied. Other witnesses gave similar testimony; one Snyder and William Hart testified to substantially the same thing, upon the examination made by each of them. All this is enough to show that the jury had evidence on which they might, without being biased or prejudiced, but in the exercise of sound judgment, have reached the conclusion that the mare was not sweenied. It may be, that the evidence of the unsoundness would seem from a reading of the record to be weightier than this, but it is not such as to justify us in saying that the jury, who saw the witnesses and had full opportunity to judge of their testimony, were clearly wrong, and the judgment will not be reversed on the weight of the evidence. It is further urged that the court erred in certain rulings made at the trial upon the admission of evidence. Lorain County. On page 5 of the bill of exceptions a ruling is found, which was made when Stewart McConnall was upon the stand as a witness. It appears that after the trial before the justice of the peace the mare was turned into the pasture of this witness. The witness in answer to a question as to what became of the mare after the trial, answered that she was turned into his pasture, where she remained until she died. The court told the jury to exclude from their consideration the statement that the mare died. This was nowise prejudicial to the plaintiffs, unless they had a right to show, as a part of their case, that the mare was dead. And in order to make it of value to them they must have been able to show that the mare died by reason of her unsoundness that existed at the time of the purchase; and if they might show that, then the defendant would have had a right to show that she died from some neglect of the plaintiffs after the sale, and there would have been raised an issue of what the treatment of the mare was all the time, and what sickness, if any, she had after the sale. There was no error in excluding from the jury the statement that the mare died. Exception is taken to the exclusion by the court of the statement of W. M. Murray and others, that they were members of the jury which tried this case before the justice of the peace. Murray in testifying in the common pleas court told of an examination he made of the mare on the day of the trial before the justice of the peace, and then, to give weight to his testimony, it was sought to show that he was a juror. That is true as to others who were called and who made examinations of the mare on the day of the trial before the justice of the peace. It was certainly not a matter which the plaintiff had a right to show as giving additional weight to the testimony of these witnesses, that they were jurors on the trial before the justice of the peace. They were here; they testified to their examination, and it ought not to add to, or detract from, the weight of that evidence, that they were jurors before the justice of the peace. Evidently the object was to impress the jury with the fact, that the result, as the transcript shows before the justice of the peace, was in favor of the plaintiffs, and that these jurors were so impressed with the unsoundness of the mare that they returned a verdict showing that they thought her to be unsound. There was no error in the ruling on this. It is claimed there was error because John Snyder was permitted to give his opinion as to whether this mare was sound. He had examined her, he is not a veterinary, but he says he is in the horse business and has been all his life; has seen hundreds of sweenied horses; that his business is buying and selling horses. He described to some |