25 Tex. 398 | Tex. | 1860
This is an action upon a promissory note executed by Holland and payable to Logan. Holland pleaded that the note was given in consideration of a horse, sold by Logan
At the time of the trade it was obvious that the horse was “ stiff.” Appellee knew this and objected to trading for the horse on that account. Appellant explained that the horse had been foundered, and stated that he would soon get well of that, and that he was otherwise sound. This was a general warranty of soundness except as to the founder; and it was also a representation as to the cause and extent of the disease which was excepted from the general warranty. If the horse was otherwise unsound, also, or unsound from other causes than the founder, and was thereby rendered worthless, Logan would have been liable under the limited warranty. Or, although not liable under his warranty, if the horse was more seriously diseased from the founder than Holland was induced to believe him to be by the representations of Logan, then these representations of Logan as to the cause and extent of the founder might have been shown to have been fraudulent, and would thereby have constituted a good ground of defence. (Story on Sales, 359, 360—1, 374.) Both the pleading and the evidence show that the ground of fraudulent representation as to the matter excepted from the warranty did not enter into the defence attempted to be made in this case. The party relied entirely upon his allegation and proof of a contract of general warranty that the horse was sound.
The judgment must therefore be reversed and the cause remanded for a new trial.
Eeversed and remanded.
