#### Charles Simpson et al. v. George Kincaid.

Sales—Contract of—Failure of Vendee to Execute—Fraudulent Representations—Instructions.

In an action by vendors against vendee to recover damages for failure of vendee to complete the contract of sale, where the defense alleged was fraudulent representations of the vendors, and the evidence was conflicting, the judgment is reversed, the court below having omitted from the instructions for defendant, in stating what must be shown as a defense, a material element of such defense.

[Opinion filed February 4, 1890.]

Appeal from the Circuit Court of Effingham County; the Hon. Cakroll 0. Boggs, Judge, presiding.

*522Mr. S. F. Gilmore, for appellants.

Messrs. Rinehart & Weight, for appellee.

Green, J.

This suit was brought by the sellers to recover damages for the breach of a contract for the purchase of a stallion, by the purchaser. The jury found a verdict for the defendant, upon which a judgment for costs against plaintiffs was rendered, and they took this appeal. The defense relied on was false representations made by the vendors. The defandant alone testified such false representations were made to him, and he was flatly contradicted in this by Simpson and another witness, and was also contradicted in other material matters by the same witnesses, and by the father of Simpson, another witness testifying on behalf of plaintiffs. The court gave the jury the following instructions on behalf of defendant:

“ If the plaintiffs made false statements to the defendant, knowing them to be false, in regard to the identity of the horse in question, and falsely represented to the defendant that the horse in question was the one to which Ogle had bred his mares, and the one defendant said he had come to buy, if they knew that such statements were false, and that the horse they were selling defendant was not the one he wanted to buy and thought he was buying, then defendant was not bound to take the horse and the plaintiffs can not recover.”

“ If the jury believe from the evidence that plaintiffs were informed by defendant what horse he came to purchase, and that they falsely represented that they had that horse, and defendant relying on that representation agreed to buy their horse, and if they further believe that such representations were untrue, and that defendant afterward found out that plaintiffs were knowingly selling him a different horse from the one he had been induced by plaintiffs to believe he was buying, then, if you find he did so induce the defendant, then defendant was not bound to take the horse, and the plaintiffs can not recover.”

To the giving of each of these instructions exceptions were duly taken on behalf of plaintiffs.

*523Conceding that the jury had the right to believe the testimony of defendant, and discredit the testimony of the witnesses who contradicted him, it must be admitted there was a sharp conflict in the evidence upon the material vital question of false representations, set up as a.defense. In this condition of the evidence the instructions given should have been accurate. The foregoing instructions in effect called for a verdict in favor of defendant, without requiring the jury to find from the evidence certain material facts. Aside from other objections this omission made both instructions defective, and the error in giving them requires us to reverse the judgment of the Circuit Court and remand the cause.

Reversed and remanded.