#### Matthew Small v. Francis E. Roberts.

Contract—Sale—Bailment—Instructions.

1. The question of whether the treatment of a horse in the hands of a given person was such as a careful, prudent man would exercise in the care of his own horse is a question of fact for the jury in a given case.

2. Objection to an instruction on the ground that it contained an assumption of a disputed fact, held to have been cured by a previous paragraph of the instructions in the case presented.

[Opinion filed January 14, 1892.]

Appeal from the Superior Court of Cook County; the Hon. Theodobe Bbentano, Judge, presiding.

Messrs. Hanect & Mebbick, for appellant

Mr. T. H. Hood, for appellee.

Moban, J.

This action was brought to recover for a horse alleged to have been sold by appellant to appellee. Appellee’s defense was that he did not buy the horse hut took him on trial, to be purchased if found to be satisfactory, and that while tryin g him and using him with proper care and prudence the horse suddenly died. The jury, under instructions *578that stated the principles of law applicable to the case fully and correctly, found a verdict for the defendant. There was a flat contradiction between the witnesses on the question of whether the horse was sold absolutely or delivered on trial, iand a verdict either way on that issue could not be disturbed in this court upon the evidence in the record. On the question of the treatment of the horse by appellee, there was no conflict, and it was for the jury to say whether the manner of his treatment as detailed was such as a careful' and prudent man would exercise in the care of his own horse. Complaint is made of the last instruction for the defendant given to the jury by the court on the ground that it assumes that the horse was given to the defendant for trial. The last paragraph of the instruction for the defendant if read by itself is liable to appellant’s criticism. But if read with the paragraph which immediately precedes it, the objection is cured. The whole instruction is as follows:

> “ If the jury believe from the evidence in this case that the plaintiff, Small, gave the defendant, ¡Roberts, an option to purchase the horse in question if he liked it, and if yon further believe from the evidence that the defendant, Roberts, received such horse from said Small for the purpose of making such trial, then such transaction constituted a bailment and not a sale, and so imposed on the defendant, Roberts, only the duty of ordinary care in keeping and returning the horse.

> “The court further instructs the jury, that if they believe from the evidence that the defendant, Roberts, and his agent or agents, exercised ordinary care in the use of such horse while on such trial (ordinary care meaning such care as an ordinarily prudent man would give to his own horse under such circumstances) and if the death of the horse resulted, then the defendant, Roberts, is not liable for the value of the horse while in his control for the purpose d>f making such trial.”

It is very clear that both paragraphs constitute but one instruction. The omission of the conjunction “ and ” between the two gives rise to a trifling ambiguity which disappears when the words are all considered.

*579In our opinion there is in fact no assumption in the instruction, and no tendency to mislead, and in view of all the instructions given to the jury we are satisfied there was no error made.

The judgment must he affirmed.

Judgment affirmed.