concurring*: I agree to the conclusion of the Court that there is no error in the case, for the reason stated in its opinion by the Chief Justice, that the defendants had not complied with the stipulation of the contract, which required them to deliver to Reynolds & Co. the horse purchased of the *65latter by them, in as sound and as good condition as when they received him, before they should be entitled to have another horse “of the same price and breed” in his place. There is no allegation or proof that this was done by the defendants, and of course they cannot recover for a breach of the contract which they have not themselves performed or offered to perform in the respect indicated. I also concur with Justice Hohe in the position taken by him in his separate opinion, that upon the facts, as shown by the evidence, the bank is not a tona, fide purchaser for value or a purchaser in due course, so as to cut off equities or defenses.
AlleN, J., concurs in this opinion.