CONCURRING OPINION.
STURGIS, J.There is; another reason why the plaintiff should recover in this case. The evidence shows that the visible defects on the horse’s shoulder were sufficient to arouse plaintiff’s suspicions that there might be some defect more serious than a mere *261surface blemish, such as a collar mark. The plaintiff guessed that it might indicate that the horse had the “spavin” or “swinney”—diseases which might seriously affect the horse’s value and usefulness. What latent defect there was or how serious could not be discovered by a layman from a casual inspection. That the horse did in fact have a serious defect, much impairing his value, is beyond question. That defect was a broken shoulder, which happened to it while a colt. The plaintiff did not know this or discover it before the trade was consummated. The defendant admits: “I testified out there that I knew there was something wrong with the horse’s shoulder. I didn’t know what caused it. Q. You knew it was slipped or broken or something? A. Yes, sir, I knew there was something the matter with it. Q. You never disclosed this defect? A. No sir, I didn’t go around and tell him the horse had a broken shoulder. ’ ’ The plaintiff says he became more suspicious that there was some more serious defect in the horse’s shoulder while riding him home. He afterward learned of the horse’s true condition and the nature and cause of his injury by inquiry from a former owner.
On this state of facts we find that at the consummation of the trade, and as a condition thereof, plaintiff asked the defendant if he would take the horse back if there was anything wrong with him other than the visible blemishes they had talked about and defendant replied: “Yes, sir, I will guarantee him to be all right. Bring him back if you find anything wrong with him except that little bump on his. knee and that little bump on his head. I will guarantee him to be all right.” This is more than a mere guarantee as to soundness; it is a plain contract that the horse was to be taken back by defendant and plaintiff’s horse returned to him in case the horse plaintiff was trading for was found to have any such defect as the evidence plainly shows he did have. Such was the contract of *262the parties and the verdict of the jury enforces that contract.
Ail concur. FARRINGTON, J.I am unable to reconcile my views as to the law of warranty of soundness with those of my associates as applied to this case. Here, the defect was the effect resulting from the breaking of the shoulder when the animal was a colt; the defect was not the cause, but the effect, i. e., the effect the once broken shoulder had on the outward appearance— a shrunken place—and on the animal’s gait. There is no evidence whatever that the shoulder was in any way diseased, or, indeed, that any disease would result from a broken shoulder; and, since the broken bone had grown together, it was not the defect complained of by the plaintiff. It is true, the broken bone, which had healed, was latent; but the resultant effect of the breaking of the bone in this case—the shrunken place and the shortened step—was the real defect complained of, and that was perfectly apparent on ordinary inspection, and at least was apparent to the plaintiff before he purchased because he testified that he saw the horse driven to a wagon and noticed a limp in his walk and called particular attention to the shrunken place in the shoulder. Hence, according to my view, the defect was patent, and one about which the plaintiff admits he knew.
The cases cited in the majority opinion are those where the defect consisted of a diseased condition which might and probably would inform the purchaser that something was wrong; it was the existing disease that caused the defect, which disease was, unknown. In this case there was no diseased condition, for, so far as the evidence shows, the bone had grown together, and the only defects existing were those which were apparent—the consequences or results of a once broken bone.
*263Consider the case of the mule with the moon-eye: Suppose the purchaser had noticed some twitching about the eye that caused him to suspicion that something was wrong to the extent that he inquired whether the mule had moon-eye. I admit that a warranty of soundness would hold the seller if the mule at that time did have the disease inquired about, because it was hidden and probably could not have been known merely from the twitching. But, suppose the purchaser noticed some twitching about the mule’s eye which was caused by the animal once having had the moon-eye but from which it had entirely recovered so that there was no diseased condition at the time of the purchase, could a recovery be had merely because the eye had been affected as a consequence of the disease, after the disease was cured and no longer existed and the twitching was the only defect which was apparent? I think not.
I believe the case at bar, so far as the warranty of soundness is concerned, falls within the rule laid down in the line of authorities which hold that a general warranty of soundness (and in this case the strongest warranty made was, “I will guarantee him to be all right)” does not cover patent defects nor defects known to the buyer. See Samuels v. Guin’s Estate, 49 Mo. App. l. c. 10, and Doyle v. Parish, 110 Mo. App. l. c. 473, 85 S. W. 64, where the rule is stated as follows: “In most instances there can be no recovery on a warranty in the sale of a chattel, for a perfectly obvious defect apparent on a simple inspection and which the purchaser had an opportunity to observe, unless the warranty expressly covered obvious defects. Neither, generally speaking, can an action be maintained for a defect known to the purchaser.”
However, I concur in the result reached because, leaving out of view the question of the warranty of soundness, the testimony of plaintiff which the jury believed shows that an express contract was made by *264the defendant to take back the horse if there was anything wrong with him other than a little bump on his knee and a little bump' on Ms head. It is not disputed that there was something else wrong with him; hence the defendant became obligated under that express contract to take back the horse and deliver over plaintiff’s horse. Upon this gnound I concur in the affirmance of the judgment.