Opinion
Decided March, 1878.
Whether corns in a horse's feet constitute unsoundness is a question of fact, to be determined upon the evidence and the general legal definition of unsoundness.
ASSUMPSIT, for a breach of warranty of soundness in a horse. The evidence of unsoundness was, that the horse had corns in his feet. The defendant contended, that, as matter of law, corns did not constitute unsoundness. The court declined so to instruct the jury, and the defendant excepted.
Barton, for the plaintiff.
Burke, for the defendant.
The defendant's contention, that, as matter of law, corns in a horse's feet do not constitute unsoundness, cannot be sustained. The court cannot take judicial notice of the fact (if it be a fact) that corns are never so serious as to amount to unsoundness. The law gives a general definition of unsoundness, and leaves it to the trier of the facts to find whether the infirmity of corns, in a particular case, is within the legal definition of unsoundness, — whether that defect materially diminishes the value of the horse and his ability to perform service. Such a diminution of value and ability is an unsoundness, although it be temporary and curable. Kiddell v. Burnard, 9 M. W. 668; Roberts v. Jenkins, 21 N.H. 116, 119, 120.
Judgment on the verdict.