Page:North Dakota Reports (vol. 48).pdf/236

 The answer in defense alleges that Walters warranted the cattle to be in good condition, in perfect health and free from disease, and to be in every way all right and in all respects suitable for the establishment and conducting of a herd for purposes of breeding pure-bred Aberdeen Angus registered cattle; that the cattle were not in good condition, perfect health, and free from disease, and were not all right, but in truth and in fact were in bad condition, in imperfect health, and diseased, and a large portion of them were affected with or subject to tuberculosis.

The testimony concerns, almost entirely, the question of whether or not these cattle were affected with tuberculosis when sold. The sole issue accordingly was that of an express warranty and a breach thereof. The appellants contend that under the instruction of the trial court (cited in the majority opinion) the jury were required to find that the word “tuberculosis” was expressly mentioned by Walters, in order to permit recovery by the appellants; that in effect this instructed the jury that a general warranty of soundness would not be sufficient to cover the disease of tuberculosis. The majority opinion practically adopts such contention. I am of the opinion that this is a narrow, technical, and unreasonable construction to be given the instruction of the trial court. The claimed breach of warranty was by reason of the disease of tuberculosis. No other deficiencies in respect to the cattle are asserted in the record. Otherwise the court charged the jury:

“If you find from the evidence that the cattle were warranted to be free from the disease, and that there was a breach thereof in accordance with the instructions I have already given you, and you find that the bull was free from the disease,” etc., “then the defendant may be allowed damages therefor,” etc.

Again the court instructed:

“Should you find from the evidence in this case that no representations were made by Walters in this case amounting to an express warranty that the cattle were free from the disease complained of in this suit, then it would be your duty to return a verdict in favor of the plaintiff,” etc.

Assuredly, under these instructions, if Walters represented or warranted the cattle to be all right in response to the request of the appellants that they wanted a nice, clean, and healthy herd, the jury were amply warranted in finding that this was a representation and warranty that such cattle were not affected with tuberculosis.

The trial court particularly instructed that the decisive test of the