Page:North Dakota Reports (vol. 48).pdf/237

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FARMERS' NAT. BANK v. TUDOR
213

warranty was whether Mr. Walters stated that the cattle were free from the disease of tuberculosis, etc., or that he used such language or words which would leave such an impression in the minds of the defendants. This court has held frequently that the instructions must be taken together, and, if when considered together they fairly present the law, they will not be condemned because one alone may not be complete in itself. Munster v. Stoddard, 170 N. W. 871; McGregor v. G. N. R. Co., 31 N. D. 471, 488, 154 N. W. 261, Ann. Cas. 1917E, 141. Furthermore, if Walters represented the cattle to be all right, in response to appellants’ request for a nice, clean, and healthy herd, such language necessarily meant that they were free from the disease of tuberculosis. In Mitchell v. Pinckney, 127 Iowa, 696, 104 N. W. 286, the vendor warranted the animals to be all right and sound in every particular. The sole contention made for breach of the warranty was that the cattle were affected with “contagious abortion.” In one of the instructions of the court the jury was told that if there was a warranty of any or all of the cattle, and the warranty was substantially as claimed in the petition, and had been broken, the defendant would be liable. The contention was made that the jury was not limited to the particular breach relied upon. The court held that such contention was hypercritical. In my opinion the contention in this regard is likewise hypercritical. The appellants consented to an oral charge by the court. No instructions were requested by the appellants. No objection was made to the instructions as given. No request was made for a more specific and comprehensive instruction. See McGregor v. G. N. R. Co., 31 N. D. 471, 488, 154 N. W. 261, Ann. Cas. 1917E, 141. Also Huber v. Zeiszler, 37 N. D. 556, 561, 164 N. W. 131. I am of the opinion that the jury was not misled and did not misunderstand the issues by reason of the particular instructions upon which reversal is granted by the majority opinion.