(After stating the foregoing facts.)
There is really very little actual conflict' in the evidence as given by the plaintiff and the defendant in this case. The evidence for the plaintiff as given on direct examination would, we think, have been sufficient to have sustained his case as laid; but upon going into details as to the transaction, in his evidence given on cross-examination, the plaintiff makes it to plainly appear that the horse described in the 'note was brought back to him (the seller), under and in accordance with his contract of warranty; that the defendant, on bringing it back to him, stated that it had been guaranteed, and that he was not satisfied with the animal; that he then told the defendant, “All right," to turn her in the lot; and that this was done. It thus appears, from the plaintiff’s own evidence, that the last transaction was not an independent horse-swap, but that, in accordance with the terms of the warranty included in the contract of sale of the second mule, the defendant, acting under his rights under that contract, returned the mule, and the plaintiff, in recognition of his duty under that contract, accepted it; all of which necessarily amounted to a complete rescission of the contract of sale as previously made; and, this being true, the note given in furtherance an'd in consideration of that sale no longer remained valid. Under the evidence of both the plaintiff and the defendant, the defendant owes for the third horse, but the seller failed in the third instance to take a note therefor as he did in the second instance. See Fisher v. Whitehurst, 14 Ga. App. 218, 219 (2) (80 S. E. 536). Under this view of the law, there could have been no valid recovery in the suit on the note; and it is unnecessary to consider any of the other assignments of error.
Judgment reversed.
Stephens and Smith, JJ., concur.