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JONES V. EDWARDS.

Jones v. Edwards.

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1. VERDICT: It is not usual for courts to disturb the verdict of a jury, because

it is against the weight of evidence, when there is any evidence to support it.

2. FRAUD IN SALE : It is fraud in a vendor of a horse not to acquaint a vendee,

when negotiating for the purchase, of facts affecting the value of the ani mal, which, if known to him, would prevent the vendee from buying.

This was a petition in error to review a judgment rendered, upon a verdict, by the District Court for Otoe county. The facts sufficiently appear in the opinion of the court.

I. N. Shambaugh, for plaintiff in error.

Calhoun and Croxton, for defendant in error.

CROUNSE, J.

It is not usual for courts to disturb the verdict of a jury because it is against the weight of evidence, where there is any evidence to support it. We see no occasion to do so in this case.

The action was brought in the District Court by Jones against Edwards, to recover damages, because of fraud practiced in the sale of a horse. The defendant, with the cunning not unfrequently introdued into this class of transactions, seems to have provided against much evidence being brought against him. Still, enough appears to war. rant the verdict.

In the November previous to the sale, Edwards traded for the horse. He was then afflicted with sweany, stiffness of the neck, and other ailments. Edwards cut some cords about the nose and neck, and turned the horse out in the yard, relieved from work. In March, Jones came along

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wishing to purchase a team suitable for farm purposes. His business being known to Edwards, the latter represented that he had just the team. He hitched up the pair, the doctored horse being one, and in driving Jones about was careful not to trot them. He assured Jones that they were “sound as far as he knew ;" “ he would not warrant them sound-he never warranted the soundness of a horse, because he could not always know whether a horse was sound or not." Not a word appears to have been said, to acquaint Jones of the former ailment and treatment of the horse. Relying on Edwards' representations, Jones took the team. Upon trotting and working him, this horse disclosed a difficulty in breathing, and after working some three weeks to plough ten acres, he ceased breathing entirely. The jury on the trial below said there was fraud, and I think they were quite right. Fair dealing would have called upon Edwards to acquaint Jones of those facts which were calculated to affect the value of the horse, a knowledge of which would very likely have determined him not to purchase.

The judgment, although somewhat informal, is good, and must stand.

Judgment affirmed.

ANDERSON 0. Colsox.

Anderson v. Colson.

1. MANDAMUS: A mandamus will not be allowed upon the hearing of the

application for which the applicant's title to an office, in virtue whereof he claims the writ, is drawn in question.

This was an original application to this court for the writ of mandamus, to be directed to the defendant Colson, as treasurer of Dodge county. The applicant in his petition for the writ, states that a meeting of the electors of school district number one of Dodge county, was, on the 4th day of April, 1870, duly convened for the purpose, among other things, of electing members of the school board for the ensuing year : In the course of the proceedings, which are minutely detailed, a motion to adjourn to the eleventh of April was made, and having been put hy the moderator and voted upon by those present, was by that officer declared, in his opinion, carried. A division was called for, which being had, the presiding officer declared the meeting adjourned. An appeal from the moderator's decision to the meeting was claimed; but he refused to entertain it, and immediately left the chair and the room, the clerk going with him. Thereupon, Mr. E. H. Crosby was, by those remaining, elected president, and Mr. Robert Kettle, secretary of the meeting; they at once took the places of the officers who had left. Mr. Crosby entertained the appeal from the decision of the chair on the question of the adjournment, and put the question to the meeting, which did not sustain the decision; thereafter the business was proceeded with as if there had been no interruption ; an election was held for members of the school board, which resulted in the election of five gentlemen. The applicant here was elected by this board as treasurer of the district, and claims to be such treasurer under this board. In the county treasury there are $2,750,

ANDERSON v. COLSON.

to which the school board is entitled. The object of the writ is to compel the county treasurer to pay this money to the applicant, as treasurer of the school board.

The answer does not deny the facts alleged in the petition, as above stated, except as it claims that the meeting of the 4th was actually and fairly adjourned to the 11th of April, and that all the proceedings had on the day of the first meeting after the adjournment, were unauthorized and void. On the 11th, pursuant to the adjournment, the electors of said district again met, when they re-elected for the ensuing year the members of the old board. This board reorganized and elected its officers, and retained all the books, records, papers and funds of the district.

To this answer there was no replication. The hearing was upon these pleadings.

R. Kittle, for the application.

E. F. Gray, contra.

MASON, Ch. J.

The pleadings show that there is a dispute who is treasurer of the school district. We cannot try that question upon an application for a mandamus. The applicant must first establish, by the proper process, his right to the office by which he claims the writ. Having done that, this application will be in order. Mr. Justice Curtis in ex rel. Goodrich v. Guthrie, secretary of the treasury, 17 Howard, 305. The petition is dismissed.

MONROE V. ELBURT.

Monroe v. Elburt.

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1. PRACTICE: Exceptions to charge. To make exceptions to the charge of the

court to the jury available to the party excepting, the exception must be reduced to writing, together with so much of the charge as is necessary to explain it.

2.

: Bill must be signea in term. If the bill of exceptions be not reducea to writing and tendered during the term at which the trial is had, it will be disregarded.

The facts are fully stated in the opinion.
A. J. Poppleton, for plaintiff in error.
Redick & Briggs, for defendant in error.

1

In representing the defence in this case, we would state :

1st. That in order for the court to take or consider the motion for a new trial in this case, the record must show that the plaintiff excepted to the overruling of the new trial by the court below at the time that it was done, which does not appear. Morgan v. Boyd, 13 Ohio State Reports, 281.

2d. That in order that the court consider any of the supposed errors that took place during the proceeding of this cause in the court below, it must appear that the said plaintiff, at the time each supposed error was made or each question was passed on, excepted to the ruling, and that it bill or bills of exceptions were made out and signed before the adjournment of that term of the court. Doe v. Brown, 6 Ohio State Reports, 12; Kline et al. v. Wyne, Haynes & Co., 10 Ohio State Reports, 221.

No memorandum of the judge purporting to be the charge to the jury, can be considered in this case unless the plaintiff has embodied the same in his bill of exceptions which is not done in this case. Hallum v. Jacks, 11 Ohio State Reports, 692.

LAKE. J.

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