The opinion of the court was delivered by
Wheeler, J.Upon the trial of this case before the auditor the only questions to be determined were, whether the plaintiff was entitled to recover anything or not upon a single item of book charge, and if entitled to recover for that item, how much was due upon it.
These questions were to be tried before the auditor in this action in the same way, and the same rules as to the right of recovery were to be applied, as if the same questions had been on trial in an action of assumpsit before a court and jury, or before a referee. The plaintiff having brought this action of book account, and obtained a judgment to account, and the appointment of an auditor, and having presented this item to the auditor for adjustment and allowance, could not justly object to having all questions connected with thé item he presented adjusted and settled upon the hearing by the auditor. He might have brought an action of assumpsit and had the same questions tried by jury, but he selected this form of action; his claim is a proper subject of adjustment in it, and all questions pertinent to its adjustment were necessarily to be determined according to the course of proceedings in-it. There was a time when, in an action for goods sold at an agreed price, the defendant was not permitted to show fraud or deceit or a breach of warranty by the plaintiff in the sale, in reduction of the damages for non-payment of the price, but was put to a cross action for a remedy for the fraud, deceit, or breach. But that doctrine was long ago repudiated in England, and perhaps never had any settled foundation in the law of this state, but if it ever was the law of this state it is well settled that it is not so now. Allen v. Hooker, 25 Vt., 138; Keyes v. Western Vt. Slate Co., 34 Vt., 81.
In this action therefore the auditor had before him, properly and necessarily to be determined, the whole contract of sale of the *611horse, charged in the item for which the plaintiff claimed to recover, as well the representations and agreements of the plaintiff made concerning the horse sold as the promise of the defendants to pay the price of it. The auditor has found and reported that the warranty was made at the time of the sale; therefore the claim of the defendants upon the plaintiff, for a reduction of the price on account of the breach of the warranty, was not independent of the contract of sale, and of their agreement to pay the price, but grew out of and was a part of that transaction. An adjustment of the rights of the parties connected with the sale therefore involved the adjustment of this claim. The numerous cases therefore 'to which we have been referred, that hold that claims for damages for breach of independent undertakings cannot be adjusted only in actions brought upon the undertakings, while they are founded upon sound principles of law, have no application to the question now under consideration. Th’e defendants insist that the facts found and reported by the auditor do not show such a warranty and breach as to entitle the plaintiff to damages on account of the breach of the warranty, or to a reduction in the price of the horse on that account. As to this the auditor has found that the plaintiff warranted the horse to be sound and right. Perhaps this horse was physically sound, although he was what is called a cribber, and perhaps not: as to that we make no decision and express no opinion; but the warranty was as to more than soundness, it was that the horse was sound and right. A fair interpretation of this warranty would make it mean that the horse was right in conduct and behavior as to all matters materially affecting its value, as well as in physical condition. No error is found in the decisions and conclusions of the auditor, or the decisions of the county court, therefore,
Judgment affirmed.