Opinion,
Me. Justice Williams:This was an action by the payee of a check against the maker. The defendant denied that the check was given by him for his own debt, and asserted that it was given, at the instance of the payee, for a debt alleged to be due him from one Briel, when in fact no such debt was due him.
The facts disclosed by the evidence ■ are that Briel was a dealer in horses from Brooklyn, N. Y., buying stock for shipment to his place of business. Reber lived a few miles from Reading, and had horses for sale. The defendant had a stable at Reading, at which Briel collected his purchases. On the third day of October, 1888, Briel went to look at Reber’s horses with a view to purchase them. One of them appeared to be sound, but the other had a swollen joint, and lie expressed a fear that it had a spavin. Reber asserted that it was sound, that the swelling was caused by a recent kick, and that the joint would be seen to be free from spavin as soon as the swelling should disappear. So far, the parties agree in their versions of what took place at Reber’s, but beyond this point there is a *647wide divergence. The plaintiff says the bargain was concluded on the spot, and that nothing remained to be done to entitle him to the price of the horses, except to deliver the horses to the purchaser at defendant’s stable. The defendant on the other hand, testifies that the bargain was not closed; that Briel, fearing the horse with the swollen joint had also a spavin, was not willing to take it without more examination than he could give it at the time, nor upon the warranty of Reber which was offered him; that the horses were brought that night to Reading, to enable him to make a final examination of the lame one, which he made, and after which he promptly notified the plaintiff of his decision not to take it.
The first assignment of error is to the rejection of an offer to pi’ove the fact that he gave notice to Reber early on the morning of the fourth of October that he found the horse unsound, and could not therefore take it. The objections made to the offer were that it was irrelevant and immaterial; the court sustained them, and excluded the evidence. This was wrong. The defendant’s version of the arrangement made with Reber required him to make known the result of his examination, and his decision in regard to the purchase of the horse. A failure to do this would naturally have been taken as an acceptance of the horse, and would have been an important circumstance corroborative of the plaintiff’s position that the bargain had been completed before the delivery of the horses at defendant’s stable. Having given his own version of the arrangement, it was important to show that he had complied with it in good faith.
The second assignment relates to the charge as a whole, and complains that so much importance was given to the subject of warranty as to divert the attention of the jury from the other questions in the case. On looking over the charge, we are led to think that the learned judge, in his effort to make the jury fully understand the nature and effect of a warranty, inadvertently overlooked what was an important preliminary question of fact, viz., what was the arrangement entered into by the parties while together at Reber’s place ? The plaintiff claimed that it was a sale ; the defendant insisted that it was an agreement upon a price to be paid on condition that, after a careful examination, he should decide to buy. If the latter *648was the correct version, that was an end of the plaintiff’s case, and the defendant had a right to the judgment of the jury upon this preliminary question. If they should find against him, then, but not otherwise they must enter upon the questions which the learned judge so fully presented to them. There is, however, reason to apprehend that the jury regarded the preliminary question as already disposed of by the court, and understood that, acting upon that basis, they were only to inquire into and pass upon two questions of fact: First, had Reber warranted the horses to be sound when he knew that one of them was unsound ? If so, this was a false warranty that relieved the defendant from his obligation to take the horses. Second, if no false warranty was made, had Reber agreed at the time of the sale, and as part of its terms, to take the horses back, if one of them was found to be unsound ? If so, this authorized the return of the horses, and made a good defence.
The jury may well have thought these the only questions submitted to them by the court, and rendered their verdict on that basis. If so, the primary ground of defence was overlooked. The testimony of Davis and of the defendant was to the effect that Briel was not to take the horses, if he concluded that the one with the swollen joint had spavin. If this was true, no sale was made ; the delivery at defendant’s stable was for examination, upon the result of which Briel was to decide whether to take the team at the price fixed or not; and the plaintiff, having had prompt notice of the result of the examination and of Briel’s decision, had no claim upon any one for the price of the horses. This question should have been clearly submitted to the jury.
The judgment is reversed, and a venire facias de novo awarded.