This is a suit brought by the representative of a deceased livery-stable man against another livery-stable man on a note for four hundred and fifty dollars, with two credits upon it at different times for one hundred and fifty dollars each. The jury found the balance due on the note, and the defendant, having filed a plea of failure of consideration and recoupment, because some of the horses were worthless, or of less value than he paid for them, and for care of them when sick, made a motion for a new trial, and on its denial excepted.
1. The verdict is amply supported by the evidence, and not contrary to law. There is no proof of the price paid for the three horses said to be diseased, and thus the damage could not be estimated by the jury on the plea of recoupment or failure of consideration. Several other horses were sold, and what they were priced at does not appear. They were sound. The pleas themselves were defective in failing to allege disease at the time of the sale. Really there seems doubt that the diseased horses were sold by the déceased to the defendant, as the witnesses describe a different man from plaintiff’s intestate.
2. Only two points of law are made and urged here. One is, that the court did not charge that defendant need not make a tender back before he could set up failure of consideration or recoup for damages, though requested to do so in writing. The court charged it substantially in full, and the entire charge is unexceptionable. When substance is charged, the court need not give a written re*705quest. Georgia Reports passim. This case is not taken out of this rule because counsel had argued want of tender back and part payment of the note, as evidence the jury might consider to show that the plea was an afterthought and the defence groundless.
3. There is certainly no error in the charge that an implied warranty, arising upon the fitness of the thing sold for ordinary use, does not embrace defects discoverable by ordinary prudence and care. There is abundant evidence that these defects in the three horses were discoverable by such care and prudence. Starting the deaf horse would discover his defect. The moon-eyes were visible, and the sprained condition of the third might be as easily discovered. Certainly some was discoverable in one or more of the three, and that in one is enough to base a charge upon. Neither 32d Ga. 704; 36th Id. 648; 45th Id. 580; 47th Id. 273, nor 59th Id. 113, control this point.
The only question is damages for delaying plaintiff in bringing the case here.' We forbear-to give them, because it may be that delay was not the sole cause for bringing the case to this court.
Judgment affirmed.