While it would have been much better and easier for plaintiff to have stood upon his warranty and the palpable breach thereof, still I think he has maintained an absolute case along the lines of fraudulent misrepresentation upon which the case was tried. He has fairly demonstrated the representations, and their unqualifiedly fraudulent character and to. say that this defendant did not have a guilty knowledge of the fraud he was perpretrating is to argue down without reason all the fair and convincing presumptions that arise from the circumstances proven in this case. It is not necessary to show that the defendant had knowledge of the defective condition of the team by positive and direct evidence, the proof may be indirect and the evidence had by showing the circumstances from which the inference is fairly to be drawn that this essential fact existed. Moorehead v. Holden, 7 Civ. Pro. 188. The case so reeks with fraud that plaintiff should not be forced to a second trial to get that which belongs to him and which in my judgment was fraudulently taken from him. I therefore dissent.
Judgment reversed and new trial ordered, with .costs to appellant to abide event.