Miller v. Grove

Goldsborough, J., delivered the opinion of this court. This was an action instituted in the Circuit court for Frederick county, on the 14th day of September 1859, by the appellant against the appellee, to recover damages for the value of a mare, claimed to be the property of the appellant, and converted by the appellee to his own use. The defendant, by his pleading, made the issue in conformity with the Act of 1856, ch. 112. At the trial below the appellant offered the evidence mentioned in the record, to prove an exchange of mares; that, at the time of the exchange, the appellee warranted the mare then belonging to him to be sound, and also said to the appellant, “If the mare is not all 1 recommend her to be, you can bring her back;” “take her, and give her a trial before you bring her back.” The appellant then said, “Well, as you ensure her sound, I will take her.” He also proved that the mare he received, was unsound, both before and at the time of the exchange. ' That after keeping her for a few days, he sent her to the appellee, and demanded the return of the mare he had delivered to the appellee; but the appellee refused to give her up.

After the testimony, had been submitted to the jury, the defendant offered the prayer mentioned in the record, which the court gave. The plaintiff excepted, and, the verdict and judgment being for the defendant, the plaintiff appealed. The defendant, by his prayer, having admitted the truth of all of the testimony offered by the plaintiff, the material question for us to decide is, whether the appellant, after the exchange, had the power to rescind, and, by the return of the appellee’s mare, did