#### William Ryan, Appellee, v. L. E. Brown, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Tazewell county; • the Hon, Theodore N. Green, .Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 16, 1917.

Rehearing denied and opinion modified and refilled July 2, 1917.

Statement of the Case.

Action by William Ryan, plaintiff, against L. E. Brown, defendant, to-recover the purchase price paid for a colt sold by defendant to plaintiff. From a judgment for plaintiff for $180, defendant appeals.

Curran & Dempsey, for appellant.

Prettyman, Velde & Prettyman, for appellee.

*535Abstract of the Decision.

1. Sales, § 262*—what constitutes warranty of animal. The statement in the advertisement of a horse for sale that the horse is “sound” constitutes a warranty and not a mere representation, especially where the seller offers to return the money paid for any horse which is shown by certificate of the examining veterinarian to have any other unsoundness or blemish than that pointed out before the sale.

2. Sales, § 269*—where horse is not sound. A horse which is afflicted with distemper at the time of sale is not sound.

Mr. Justice Graves

delivered the opinion of the court.