Smith, P. J.
Bconsideration-es: iXlMÍsfomd311 quéstion.ury This is an action on a promissory note for $1,000. The answer admitted the execution of the note and as a defense pleaded that the consideration for which said note was given was the purchase of a horse; that said horse was purchased be used as a trotting horse, which fact was well known to plaintiff at the time; that plaintiff well knowing the purposes for which defendant wanted said horse, *315and in order to induce him to make said purchase, falsely represented to the defendant that said horse was perfectly sound and fit for use as a trotting horse and defendant, relying on plaintiff’s said representations, was induced thereby to purchase said horse and execute the note sued on; that said horse was unsound, diseased in his feet and his hoofs were rotten, which the plaintiff then well knew, which rendered him entirely worthless for the purposes for which he was purchased, or for’any other purpose.
At the trial the court gave a peremptory instruction to the jury to return a verdict for the plaintiff. Judgment was given for plaintiffs and the defendant has appealed.
It is thus seen that the answer affirmatively states that the plaintiff, by his deceitful representations, induced the defendant to purchase the horse and to give the note sued on for the purchase price thereof. It further states that the horse so purchased was valueless for any purpose. These facts clearly show that the note was given without any consideration whatever. It in effect pleaded an entire want or failure of consideration, and that issue was sufficiently tendered ^y it to justify the reception of evidence in its support.
Under the old English rule, where the action by the seller against the buyer was not for the price of the goods, but on a security given for them, for example, a note or bill given in payment, the purchaser had no defense even pro tanto where the goods were warranted of a particular description and turned out to be of inferior description, etc. Biddle on War. & Sale of Chat., sec. 304. But under our statute, section 2090, when a specialty or other written contract for. the payment of money is the foundation' of the action or defense in whole, or in part, the proper *316party may prove the want of failure of the consideration in whole or in part of such specialty or written contract. The evidence .adduced by the defendant in support of the affirmative of the issue, was, we think, sufficient to authorize a submission to the jury, under appropriate instructions. The giving by the court of the peremptory instruction was a clear invasion by the court of the province of the jury.
sciss!olf,s' re" The answer does not set up a counterclaim for damages based on the deceit practiced by plaintiff, but it pleads in avoidance of plaintiff’s action a total want of consideration. If the horse, for the purchase price of which the note was given, was worthless for any purpose, why return him? Certainly no injury could result to the plaintiff by the defendant’s omission to do so. The general rule as if a party would repudiate a contract for fraud, he must return the consideration unless it is wholly without value. Sutherland on Dam., section 549; Reeves v. Kelly, 30 Mich. 132; Peterson v. Lumber Co., 51 Mich. 86.
Salks: warranty, The deceitful affirmation averred in the answer was a sufficient avermént of a warranty. It was unnecessary to use the word warranty. gj^jgg on y\Tar. gale of Chat., Sections 283, 291. A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase. Biddle on War. in Sale of Chat., sections 1,2. The testimony of the defendant was that when he went to look at the horse, he told A. G-. Danforth, one of the plaintiffs', that he knew nothing about horses and that he (Danforth) told him “that the horse was sound and all right, except a little bump on his ankle, and that outside of that he was all right.” This affirmation, *317according to the rale just stated, was in effect a warranty. The evidence tends to prove the horse was entirely worthless for any purpose.
~on :TvTiTanty‘. It seems to us that the principle of the rule declared in Broion v. Welden, 99 Mo. 564, is applicable to the facts of this case, which rule is to the effect that in an action on a promissory note, given for the purchase price of a chattel bought for a particular purpose, whether upon an express or implied warranty, with or without fraud, 'it is not necessary that the purchaser should return the chattel, or offer to return it, or to rescind the contract, or that such chattel should be wholly worthless, in order that he may avail himself of his plea of a failure of consideration. But if he retain the chattel and does not offer to return it, and said chattel is not wholly worthless, such plea can avail him only so far as to defeat a recovery on the note, to the extent of the difference between the value of the chattel, had it been such as it was represented to be and its value such as it is shown really to be.
: : ' But whether defendant was induced to give the note in consequence of his reliance on a warranty with deceit, or on deceitful representations without a warranty respecting the soundness of the horse, can make no difference; for, if the horse was unsound and worthless for any purpose, there would be a total failure of the consideration, so that the result would be the same in either case.
payment ?artia^ estoppel. Nor does the fact that the defendant made some payments on the note preclude the defense pleaded. Werner v. O’Brien, 40 Mo. App. 483. There was no estoppel in the case. None 0£ eaSes cited and relied on by plaintiffs are analogous to this* and therefore not in point.
*318. We think the court erred in its action withdrawing the case from the jury, so that it follows the judgment will be reversed and the cause remanded.
All concur.