#### Thomas J. Nickle v. Asa S. Williamson.

Verdict—insufficiency of evidence. To support á verdict in an action for unsoundness of a horse, there must he proof of a warranty, express or implied, or proof of the existence of some disease-known to the seller, and unknown to the purchaser, at the time of sale.

*49Appeal from the Circuit Court of Iroquois county; the Hon. Charles It. Starr, Judge, presiding.

The opinion states the case.

Messrs. Blades & Kay, for the appellant.

To support an action for unsoundness of a horse there must be proof of a warranty, express or implied. Ender v. Scott, 11 Ill. 35; Adams v. Johnson, 15 id. 345; Hawkins v. Berry, 5 Gilm. 36; Misner et al. v. Granger, 4 id. 69; 1 Smith’s L. Cas. 5 Am. ed., top page 242, et seq. 1 Parsons on Cont., 5th ed. 576, 577; Hilliard on Sales, 257, § 5; Story on Sales, § 352.

Messrs. Fletcher & Kinney, for the appellee.

Mr. Justice Breese

delivered the opinion of the Court:

We do not deem the evidence sufficient to sustain this verdict. There is no proof of a warranty express or implied, and no proof of any disease known to the seller, which he did not communicate to the purchaser. It is quite clear, that the animal was sold as an unsound animal, for she was sold on credit at a price far below her value had she been sound.

The weight of evidence greatly preponderates in favor of the appellant, and he should have had the verdict.

When told by Wallace when he was called on by appellee, to sign a note with him for the price of the mare, that he was “ bit, ” he replied, “ if he was he would have to stand it.” How natural it would have been for him, on that occasion, to have replied, he had a warranty, if the fact was so.

The evidence is by no means clear, that the mare is seriously diseased, though sold as one not perfectly sound. It would seem the mucous membrane of one or both nostrils was disordered in some way, but no one witness testified it was incurable. But we place the case on the ground, that the evidence falls to establish a warranty, and that it goes far to establish *50the fact, from the smallness of the price, that she was sold and purchased as an animal not perfectly sound.

The judgment must he reversed and the cause remanded.

Judgment reversed.