308

, FEDERAL REPORTER,

vol. 38.

deem it necessary to decide whether the errors in question arise from this engineer's illcompetency or dishonesty, although it is fit that I should say that there is no proof whatever that these false eijtimates were made at the instance or with the knowledge of the· plaintiffs, or of Jones, Forrest & Bodkin. There will therefore be a finding in favor of the plaintiffs for the amount shown by the estimates to be due them on the basis of the correctness of the monthly estimates on division 9, and for the extra work,-such as the extension of embankments at the ends of the bridges, side-track work, etc;,-of which there is no dispute.

NEWBERRY

v.

BENNETT

et ale

«(Jircuit Court. 8. D. (JaU,j'ornia.

March 26, 1889)

1.

BALE-WARRANTy-EvIDENCE.

I.

ranty sU,ed on. which was that the horse was a reasonably sure foal getter, should lje·given. and at the close of them. plaintiff executed deeds for the land which was exchanged for the horse, and that defendant at the'same time executed the bill of sale of the same date containing the warranty. Defendant testified t,hat he never agreed to give the warranty, and did not give the bill of sale and warranty at the time of the completion of the sale. but that several days after. plaintiff asked for a bill of sale as a favor. and to accommodate him defendant made the' bill of sale. using a blank therefor,. audnot noticing that it contained the warranty; that he had two forms of bills of sale. one of which contained a warranty and the other did not, and that he inadvertently used the former. Defendant was in the habit of giving a bill of sale and warranty for horses sold. Held. that the evidence showed the ex· ecution of the bill of sale and warranty at the time of the sale.
SAME-DAMAGES.

$2.000. which he desired for breeding purposes, it was agreed that the war·

Plaintiff testified that in the nell.'otiations for tlle sale of a horse worth

Defendant having agreed to replace the horse dn delivery of it to him in CRse it should prove barren, and ample evidence of its unfitness for·breeding purposes having been given in the three months following the purchase, plaint'iff should have then retu.rned it. and cannot recover expenses incurred upon it after that time. .

At Law. Curtis & Otis, for plaintiff. Lucien and W. T. Williams, for defendants.

Ross, J. , This action is founded upon a guaranty contained in a bill of sale executed by defendants to the plaintiff for a Clydesdale stallion called "Scotland's King," which reads as follows: . "We hereby guaranty the above-named horse to be a reasonably
getter. with propel' care and handling. In he should prove barren we and p'rice. upon delivagree to replace him with another horse of same eryto us of above-named horse. if as sound and in as good condition as when ' .. ; .' . ' ., . '. '. purchased of us. " ,

-

v.

BENNETT.

309

While the bill of sale expresses a consideration of 83,000, it appears from the evidence in the case that the horse was in fact transferred to the plaintiff in exchange for two pieces of land, one situated in the state of Minnesota and the other in Dakota, conveyed by plaintiff to the defendants. That the horse did not prove a reasonably sure foal-getter or any foal-getter at all, is, from the evidence,very clear. It is claimed for the defendants that he did not receive from plaintiff proper care and handling, and that the fact that he would take no notice of mares was occasionp.dby such neglect. I do not think that a fair deduction from stable to be built for the the testimony. The plaintiff caused a horse, and had an experienced man constantly employed in charge of bim. He was well groomed, and, although 110t fed upon some of the food mentioned by some of the witnesses for defendants as being best for stallions, he was given an abundance of the food commonly fed in this country, and upon which other stallions of the same breed do well here,as-stated by a witness for the plaintiff, and upon which this particular horse kept in good flesh. I am satisfied from the evidence that the defectin,the horse cannot be attributed to a want of proper care or handling on plaintiff's part. Proving barren, the horse was returned by the plaintiff and tendered to defendants, with a demand that they replace him with another horse of the same breed and price. Defendants refused to receive the horse, or to comply with the demand, claiming...;..; First, that they gave no guaranty; and, secondly, that the horse was not , then as sound and in as good condition as when purchased by the plaintiff. I think the evidence shows that he was in substantially the same ' condition when returned as when purchased. But the first objection made by defendants to the tender goes to the principal point relied upon in delense of the action., It is claimed by defendants that the guaranty was not executed at the time of the sale, but suhsequently, and without consideration; and upon this point the testimony of the plaintiff and of the defendant Bennett is in direct conflict. Both of these parties made a good appearance upon the witness stand, and were apparently testifying truthfully. Yet the testimony of both cannot he true. In brief, that of the plaintiff on this· point is that in the negotiation conceruing the horse the agreement with defendants was that they should give the guaranty in question, and that at the time .of the closing of the trade plaintiff executed to defendants deeds for the land, and at the same time the elder Bennett (with whom the businas!:l was cond ucted) executed to him (plaintiff) the bill of sale and guaranty. Bennett positively denies the statement of the plaintiff in these particulars,and testifies that ,he never agreed to give a guaranty, and did not give a bill of sale or guaranty at the time of the coneummation of the sale; that several days after its consummation and after his receipt of the deeds in payment for the horse, plaintiff came tQc him, and asked him as a favor to give him a bill of sale for the horse, and that to accommo.date plaintiff he (Bennett) went to his room, and got a blank bill of sale flnd signed it, rot noticing that it contained a guaranty, and gave it to the plaintiff; that defendants, whose business is that of importing and

310'

FEDERAL" REPORTER,

voL 38.

selling £ltallions, llave two forms of, bills of sale, dne With and the other without a guaranty, and that in this inatancea blank with the guaranty was used through inadvertence. In deciding upon such conflicting testimony of witnesses. apparently truthful the court must look at the prob. abilities of the case. In the first place, it is not probable that the tiff would have asked as a favor that which he had the right to demand as a right; In the next place, the purpose for which the plaintiff wanted the horse was that of breeding. It was reasonable and probable, therefore,-especially in view of the fact that the horse was a costly one,..;...that plaintiff should require a guaranty that he should prove a reasonably sure foal-getter,if defendants would give such guaranty; and that they were in the habit of giving such guaranties in cases of sale was admitted by the witness Bennett. This witness also admitted that he usually executed a bill of sale·for the horses that he sold. ' It would therefore have been unusual for him not to have executed such an instrument for the horse in question, and, considering his vallie, the purpose for which he was purchased, and the fact that at the time of the consummation of the sale the plaintiff executed to defendants deeds in writing for tbeland, tbe probabilities,'in my opinion, confirmtbe plaintiff's' testimony to the effect that tbebill of sale with the guaranty was executed by defendants at the time of the sale and as a part of it. And this. conclusion is further sustained by the circumstance that the bill of sale and the deeds bear the same date. But one other question remains to be determined, and that is the amount of damages to, which plaintiff is entitled.: The counsel for the' respective parties are agreed that the true measure of damages is the excess of the value the horse would have had iLhe had been a reasonably sure foal-getter"over hisvaJae,·inhis barren condition, and, in ad-, dition, a fair compensation for the loss incurred. by the plaintiff in his effort in good faith to use him for the purpose for which he was pur- i chased. I think the evidence shows the casb value of the horse at the time of sale was $2,000; and that in his barren condition as subsequently ascertained,' his .value was and is $250. The plaintiff received the horse about the 1st of }february and from thaLtimeon, and especially during the months ofAptiland May, repeated. efforts were by pltiintiff's direction made to testthe:ca,pacity of tbehorse, and ample evidence given of his unfitness :for: breeding purposes. The horse should then have been returned by plaintiff 'to defendants. For expenses subsequently incurred I do noteth{nk plaintiff should be allowed. For the board and wages of the man employed to care for the l!orse during the Inllnthsof February, March, :ApriL, and.May the plaintiff will be allowed at the rate of $.5.5. per, mOllth,aggregating $220.. It results that' plain,": tiff is entitled to judgment against defendants for the ,sum of &1,970 and costs. Ordered accordingly.
j

BLUNKh. ATOHISON, 'T. &S.

ll'::a. co.

311

'. BLUNK

j'

v.A1'cHlsON, T. & S. F. R. Co.

(Oirouit Oourt,

w: D.Mi880wri; w: D.

LIES. '

March 14,1889.

,1. ,MALICIOUS, PaoSEOUTION-WREN.

" If.

the tiling of an origi,nal complaintfor criminal prosecution. those who instituted the prosec\ltion learn facts shQwing the innocence of the accused,theyare not liable for malicious prosecutiohfor-merely withholding such information from the prosecuting attorney. as under the statutes of Kansas the ClloSll is then in the hands of the attorney; but they are liable if they still insist'upon. urge, anei demand the prosecution of the accused.

: .

'." SDl:E-MAttcE":"WHAT CONSTITUTES.

8.

"Whet_6 there is a wanton, gross, reckless disregard ofthe rights of another in instituting a prosecution,as where confessedly there is no excuse for it,7no reasonable g,round.-thG jury may find the prosecution malicious, though there isno direct testimony of· prior trouble, ill-will, or grudge.

SAME-PROBABLE C A U S E . '

_,'

i

..

G.

Where robbery and murder have been committed, an,d those atIected thereby,on being informed by a convict in a penitentiary that he, with certll.in others, committed the' crimes, find on investigation that the details of the facts stated by, their informant aresuhstantially true, and from the confession and the,details.they entertain an: honest and strong suspic!on that thepersollsnamed were guilty, probable :cause exillts for 'prosecutIOn of those iniplicatedby the statement of the 'convict. ' COUNSEL. " " If one injutEld;by a (ilrime discloses all the facts tha,t he knows, arthat by the exercise ,of reasonabl6:care, he can obtain, honestly and fully to counsel, and the latter advises 'tHat' iluch facts make out a case for prosecution of, suspooted 'persons, :the injured 'person ,is justified in institllting .the prosecution. 1 SAME-RIGHTS OF ACCUSED. , ' . ' ," , " ' , Tqe lluspected persons need not be ,informed or led from the in'vestigatio'ns ,t:O believe, before the prosecution' is iJistituted, that they are accused 'of the . '", . . , Thll,lMasure :of damages . fQr malicious prosecution ill the expense oltha defeRi!e, the ,value of the time lost by the accuse4, and' a reasonable compen;;'sation'f0lUnjury to reputation. . ' .
SAME-DAMAGES,:.. .' , . '

f.

,1

j

At Law. Abtion by A.Blunk against ;the Atchison, Topeka & Santa Fe road,Company,fordaniages for maliCious prosecution. Robin8Ofl,& Harkless, for plaintiff. McCrary and Gardener Lathrop, for defendant.

Rail.

'

charging jury.) The case l which has be,en tried befoie' tori'with very full detail offacts, is oae of importance, not merely totlre ,partills involved herejbut also to the general public, and by reason .of that fiwti it deserves at your hands the most careful consideration. Both sides have presented the testimony fully and fairlYiand it certainly is, a: pleasure to try a case when His tried, as this has been,Bu well, -and so pleasantly; by counsel. . At the very outset I want to notice and
· 1 Respebting of counsel as' shbwing probable cause, and the neoessity of dis;cl08iug,aU; to an ac'tion fOr malicious prj)sequtlon, ,l!ee'.faddpok V" Wlltts, (Ind.) I;,i. E. 018; Cuthbert v. Gallowlly,ll5 Fed.:a.ep; 4tiIl; , Notrelv. V'ogel,' tMinn;)38 'N.' W. 'Rep. 705, and note. ., " '. . " , ,