Assumpsit to recover the price paid for a horse sold and delivered to the plaintiff after rescission of the sale for breach of warranty. The case is brought before this court on motion of the defendants to sot aside the verdict of the jury because against law, evidence and the weight of evidence. The evidence consists principally of the testimony of witnesses not discredited or conflicting. From facts not in dispute the jury by their verdict must have found that the defendant warranted the horse sound except as to quarter cracks in the forward feet, and that it was at the time of the sale unsound by being affected with a disease called whistling. The warranty we think is proved; but the breach of warranty is a question which must be decided by a review of the evidence from the point of view of the parties.
It appears that the horse in question was purchased for the defendants just previous to the sale to the plaintiff by an experienced buyer who applied the usual tests to determine its soundness and discovered no evidence of whistling; and the defendants, making use of similar tests, and parties who used the horse in hauling coal failed to notice such defect. After the sale to the plaintiff the horse, being noticeable in its general appearance, was for weeks under the casual observation of experienced horsemen, and to them it appeared in good condition. Afterward it was sold by the plaintiff to a man by the name of Smith who was familiar with horses, and his examination failed to disclose unsoundness in respect to the horse’s breathing until he was driving it home, a distance of twelve miles. The whistling became so manifest that in about a week he returned the *567horse and the price which he had paid was refunded. The plaintiff thereupon, finding that the horse was unsound, shipped it back to the defendants by rail with notice to him of his reason for rescinding the sale. The horse when removed from the car was found to be sick and upon the advice of a veterinary surgeon it was chloroformed. The sale was made January 24th, and the rescission March 30th, 1901. It appears by the evidence that the disease was not known to the parties or any of their witnesses during a period of nearly two months, and that within a few days after its symptoms were recognized it resulted fatally.
The theory of the plaintiff is that the disease éxisted at the time of the sale and warranty in its primary stage, induced either by acute laryngitis or by paralysis caused by working in an ill-fitting collar, and that it iiad not become sufficiently developed to attract the attention of himself or those about his stables until after the sale to Smith. A.nd he relies upon the testimony of the experts to show that if the horse was not driven fast or loaded heavily, no person could tell whether lie was a whistler or not; and he claims that the condition of the weather was such that there had been no opportunity or occasion to use the horse in a way to develop symptoms of the disease.
The theory of the defendant is that the disease was contracted while in the possession either of the plaintiff or Smith from exposure in severe weather or from contagion; and he relies upon the fact that the horse was taken from a close stable and actually used in hauling snow and subsequently driven a considerable distance to Smith’s home; and upon the further fact that when the horse was returned to him it bore evidence of having taken a sudden cold or of being affected by some other malady in an acute form inconsistent with the plaintiff’s theory of the gradual development of the disease.
The parties were large dealers who must have had special knowledge in reference to conditions affecting the soundness of horses, and their acts do not indicate bad faith on the part of either, but that in fact neither of them knew that the horse was unsound, except the obvious defects in its feet, until it had been returned by Smith to the plaintiff. The cross-examination of the witnesses does not indicate *568distrust of tlieir truthfulness. This court has the same opportunity as the jury to weigh the evidence, and it is obvious that they must have reached their conclusions by inferences not sustained by facts proved. Nearly two months after the horse was warranted sound the disease which constituted the alleged breach of warranty was first discovered. It is possible that it might not have been so far developed as to be observed under the existing circumstances, but it seems improbable that it could have existed at the date of the warranty when Ave consider the tests made by the purchasing agent, the three days of heavy work in hauling coal, the good general condition indicated by the appetite and appearance of the horse until a few days before its death. Beach on Contracts, § 281.
Motion sustained. New trial granted.