This section contains the nature of the case and procedural background.

Tribe (P) purchased his first horse called Moccasin Badger from Peterson (D). P alleged that D had expressly warranted that the horse would never buck. It did, and when P was thrown from the horse, his left wrist was shattered. P sued under breach of warranty. The known history of the horse begins in 1994 wherein a man named Painter purchased the horse and swore that he was plumb gentle. Painter was not called as a witness at trial, but his testimony was read into the record. The horse was advertised for sale in 1995 and D purchased him for $2,200. D then decided to sell the horse, and they took it to the vet, and the vet testified that she found Badger to be a sound horse that was kind and gentle and did what was asked of him. P was at the sale and rode the horse. The brochure described him as quiet and extra gentle and a good prospect for kids. Testimony conflicts as to whether D actually guaranteed that the horse would never buck. P claimed a breach of express warranty and that D negligently and fraudulently misrepresented the horse’s nature. P moved for summary judgment. That was denied, and after a three-day trial, the jury found for D on all claims. P then moved for a judgment as a matter of law or a new trial. Those were denied. This appeal resulted.

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