majority">

The opinion of the court was delivered by

Ross, J.

I. There was no error in the exclusion of the defendant’s representations made to Kirk when acting as the agent of another proposed purchaser of the horse through the agency of Kirk. Representations to an agent are in law representations to his principal. It would be illogical to hold that representations to an agent, acting for A., without being alluded to, entered into a subsequent transaction concerning the same subject matter, conducted through the same agent for B. It does not follow that the seller would make the same representations at a subsequent time, which he made on a former occasion, nor that he would make the same representations in a trade with B. for the sale of an article, which he previously made in attempting to effect a.sale of the same article to A. The article might, to his knowledge, have changed during the intervening time, or he might not desire, upon reflection, to abide by the representations he had made to A. But if this were not so the plaintiff, on his own testimony, relied upon the representations which the defendant made to him in person, when he and Kirk were present and examined the horse, and on his telegram to Kirk, which the jury must have found was never communicated to the defendant.

II. While the defendant contended that the horse was not a whistler at the time of the sale nor ever thereafter, he gave no evidence of his condition after he parted with the possession of the horse July 20. On the issue made by the evidence it was immaterial to compare the condition of the horse on July 21st *63and August 14th, as was done by the interrogatory and answer excluded in the deposition of Webber. No harmful legal error could arise out of this exclusion. While it is apparent that the evidence might have been such as to put-in issue the condition ■of the horse August 14th, as compared with his condition July 21st, unless it did so, the court might well treat the comparison as immaterial. The exclusion of immaterial testimony cannot be held error. To render testimony legally admissible, it must be material to some issue on trial. The plaintiff contends that the condition of the horse August 14th was a disputed point. It was so ,by the claim of the- defendant, but not by any evidence introduced by him. If on the evidence his condition August 14th was in contention, that fact would not necessarily render a comparison of his condition on that day with his condition July 21st material. We think from the exceptions bearing on this point, it is apparent the plaintiff did not suffer any legal injury by the exclusion of the comparison, and the exception is unsustained.

III. The plaintiff was allowed to show by expert witnesses what whistling in horses is, and how it affects them, but was precluded from showing by this class of witnesses that whistling in horses was an unsoundness,- and that it was so universally considered among horsemen. The court instructed the jury in a manner not excepted to in regard to what facts would amount to a legal unsoundness in a horse, and submitted to the jury to determine whether they found such facts established. We .think there was no error in the action of the county court on this subject. The proposition of the plaintiff would substitute the expert witnesses in the place of the court and jury to determine what constitutes an unsoundness. This is never allowable. Witnesses, expert or non-expert, are never legally allowed to assume the province of both the court and jury.

IY. Interrogatory 8 in the deposition of Albert Way was, “ State whether there was any unsoundness of any kind about the horse,” and the answer, “ He was perfectly sound with the exception that he was inclined to be flat-footed.” This question *64and answer, if they stood alone, were a clear invasion of the principle which we have just laid down, that a witness, expert or non-expert, is never allowed to assume the office of both - the court and jury in determining the vital question in issue. But by the twm preceding questions the witness had been particularly called upon to state whether during the summer of 1886, at any time, while he knew the horse, there had been any defect about his breathing, or if he had noticed any inclination or appearance of his being what is called a whistler. These questions the witness had answered in the negative. They covered fully the only point in issue, on this subject, between the parties. In this state of the witness’ testimony interrogatory 8 and its answer were wholly immaterial. They added nothing to the force of the witness’ testimony, properly drawn out, in the cate. It would have been wiser perhaps to have excluded the interrogatory and its answer ; yet it is quite manifest that, folio-wing the witness’ testimony properly drawn out .on the vital question in the case, it added nothing to the force of that testimony, and was directed to a phase of the case, which might have been, but was not in issue, and so it was wholly irrelevant and immaterial and could have wrought the plaintiff no injury.

V. The witness Conner was a veterinary surgeon, resided in close proximity to the defendant’s barn while he owned the horse, had ridden after and seen the horse driven. It was proper to ask him if he had seen any indications about him of being a whistler, and whether,if there had been any such indication, he would have noticed it. He was one who/knew what the indications that a horse was a whistler were, and who, from his profession and acquaintance with the horse, would be likely to notice such indications. The last question and answer really added nothing to the testimony already given. It could, at the worst, be but uninjurious to the plaintiff.

The judgment of the County Court is affirmed.

Citation profile

How this case has been treated — in progress