72 So. 193 | Miss. | 1916
delivered the opinion of the court.
The appellant in this case, J. W. Hatcher, sued out in a justice of the peace court of Winston county a writ of 'replevin for the possession of one bay mare wrongfully detained by the appellee, Sam Bagwell: Judgment was rendered in-favor of defendant in that court, and an appeal prosecuted to ‘the circuit court, where judgment was also rendered in favor of the defendant, from- which judgment this appeal is prosecuted. x
Prom the uncontradicted facts in the case it appears that the appellee purchased a mule from one Watson, giving him as part payment of the purchase price a mule, and securing the balance of the debt by a note in which the title to the mule sold appellee was reserved in said Watson until the purchase price was all paid. The son of the appellee traded this mule to the appellant for the bay mare attempted to be replevied in this case. When the appellee learned of this horse trade he saw appellant and
In a horse trade of this kind there is, of course, a warranty of the titles to the horses; and, when either title fails, the other party is entitled to a return of his horse because of the total failure of consideration. There was no waiver of the title by the appellant in this case, for the reason that he insisted that appellee make the title good to the mule. It therefore follows that the court erred in not giving the peremptory instruction requested by appellant. ■
Reversed and remanded.