#### Ira Wells, Appellee, v. Andrew Graham, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of McLean county; the Hon. CoiosTirr D. Myebs, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed April 21, 1916.

Statement of the Case.

Action by Ira Wells, plaintiff, against Andrew Graham, defendant, for breach of warranty for a horse sold by the defendant to the plaintiff. From a judgment for plaintiff, defendant appeals.

Bracken & Young and W. B. Leach, for appellant.

Light & Light, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Thompson

delivered the opinion of the court.

*306Abstract of the Decision.

1. Sales, § 401 * —when evidence sufficient to sustain verdict. Evidence in an action for breach of warranty of a horse, held not to justify the reversal of a judgment for the plaintiff.

2. Sales, § 241*—when doctrine of caveat emptor inapplicable. The doctrine of caveat emptor held not to apply where a vendor of a-horse, knowing that it was permanently diseased, warranted it to be sound and explained to the purchaser thereof that its lameness was due to a cause other than that to which it was really due, and such purchaser, without having any other information in regard to the matter, made the purchase on the strength of such representation.

3. Sales, § 402*—when instruction in action for breach of warranty of horse correct. In an action for a breach of warranty of a horse, an instruction that if the jury “believe from a preponderance of evidence that the horse in question was unsound and it was known to the defendant when he sold the horse to the plaintiff and that the defendant told plaintiff that the horse was sound and the plaintiff purchased the horse without knowledge of the unsoundness and relying,” etc., held a sufficient charge that the representation must have been made at 'the time of the sale in order to justify a recovery.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.