The plaintiff sold a horse to the defendant for $72. Thereafter the defendant told the plaintiff that the horse had an .incurable disease, and the plaintiff voluntarily gave back the $72 and told the defendant to destroy the horse. The defendant thereafter discovered that the horse was not suffering from the disease, and did *141not destroy it but disposed of it to a third person. The plaintiff sues for the return of the $72.
As there was no element of warranty in the transaction, the sale was not affected by the fact that the horse was diseased, for the rule of oa/oeat eorvptor applies. The parties virtually rescinded the contract; the vendor refunded the purchase money and the vendor in effect took back the horse, for he, as owner, directed that it should be destroyed. I do not see that he has any legal right to recover the $72. There is no proof of fraud in the case, although the plaintiff pleaded it. It appears that when the defendant represented to the plaintiff that the horse was incurably diseased, he was sustained by the opinion of a veterinary surgeon that such was his condition.
So far as the horse is concerned, that involves a different proposition. If the plaintiff abandoned the horse, then he is remediless; if, on the other hand, he but gave up the possession of the horse to the defendant for a specific purpose, namely, to be destroyed, but the defendant failed to destroy the horse, the question would arise whether the defendant was not hound to restore the horse to the plaintiff upon demand under the penalty of a conversion. But that question is not involved in this case.
I advise'affirmance of' the judgment, with costs.
Burr, Thomas and Carr, JJ., concurred; Woodward, J., dissented.
Judgment of the Municipal Court affirmed, with costs.