It appears that after the case was opened, and before any evidence was offered, the defendant asked the court to require the plaintiff to elect upon which of the three counts he would proceed; but the court declined to require the plaintiff to elect at that time. Subsequently, the court ruled that the plaintiff “ was limited in his right to recover to the written warranty set forth in his second count,- and the plaintiff thereupon acquiesced in that ruling.” Before this ruling was made, the plaintiff had put in evidence, against the objection of the defendant, an advertisement, which the defendant had caused to be published in a newspaper, of the proposed sale of a lot of horses, in which was. included the horse bought by the plaintiff. After the plaintiff was confined by the ruling to the second count, the defendant asked the court to exclude the evidence of the advertisement”, but the court refused, and the exceptions state thatthe defendant did not except to this refusal.”
The complaint of the defendant is, that, on a correct construction of the whole declaration, the advertisement ought never to have been admitted in evidence. It is conceded that, if the foundation of the action had been, not a breach of a written warranty, but fraudulent misrepresentations, the advertisement would have been admissible; but it is said that the action proceeded solely on the ground that the plaintiff had rescinded the sale on account of the breach of a written warranty, and that evidence of the advertisement could not be introduced for the purpose of enlarging or varying the written contract.
*615The bill of sale of the horse contained the words, “ Warranted sound and kind on delivery,” and was signed in the name of the defendant by his bookkeeper. The plaintiff had bid off the horse at an auction held by the defendant, at which the advertisement had been read as containing the terms on which the horses were to be sold. The defendant’s bookkeeper, after the horse had been struck off to the plaintiff, required him to make a deposit of fifteen dollars, and he gave to the plaintiff an unreceipted bill of sale of the horse, containing the price, with a credit of fifteen dollars. Apparently the sale was for cash. The testimony of the plaintiff tends to show that, before the horse was delivered to him, he offered to pay the remainder of the price to the bookkeeper, and asked the bookkeeper what kind of warranty he was to have, and that the bookkeeper took the bill of sale, wrote in the words warranting the horse, received the plaintiff’s money, receipted the bill in the name of the defendant, and delivered it to the plaintiff.
One question in the case was whether the bookkeeper was authorized by the defendant to give a written warranty; and besides the evidence of his authority generally, there was distinct evidence that he had authority from the defendant to give a written warranty if the horse had been sold with an oral warranty. The advertisement in connection with the other testimony tended to show that the horse was sold with some kind of a warranty, and that therefore the bookkeeper was authorized to give a written warranty in behalf of the defendant. Besides, if the horse was sold with an oral warranty that he was sound and kind, the insertion of these words in the bill of sale had only the effect of making the written paper conform to the actual contract. Spalding v. Conant, 146 Mass. 292.
The next exception argued is to the refusal to rule that, “ when the horse was knocked down to the plaintiff by the auctioneer, for the sum bid, the plaintiff being the highest bidder therefor, the contract was complete”; and the contention is, that the insertion of the warranty in the bill of sale after this would not bind the defendant, even if made by his authority, because there would be no consideration to support it. Upon this question the instructions of the court were correct. Those instructions were, in substance, that if, before the money was paid and the horse *616was delivered, the question arose between the parties as to the form of the warranty to be given, and the parties agreed that these words of warranty should be written into the bill of sale as a part of the contract, and they were so written in, and the money was then paid and the horse delivered, the warranty would rest upon a good consideration, and would bind the defendant ; but that if, after the horse had been delivered and the money paid, the warranty was inserted by the defendant in the bill of sale, and the defendant was not bound by the contract of sale to insert it, but he voluntarily chose to put it in, then the defendant was not bound by it.
We think there was evidence for the jury, not only that the horse was actually sold with the warranty declared on, but also that the bookkeeper had authority from the defendant to give in his behalf a written warranty of a horse sold by him. These are all the exceptions argued by the counsel for the defendant, and the entry must be, Exceptions overruled.