(dissenting). It will be noticed that the warranty contained in the bill of sale is a specific warranty, and relates exclusively to the certainty of the propagating qualities of such stallion, and the percentage is fixed at 50 per cent of all mares of breeding age and in *240breeding condition, bred to such stallion, to be in foal. It will be noticed that this specific warranty had attached to it certain conditions which were to be performed by the purchaser, such as the proper feeding, nourishing, and caring for of such horse, and other conditions, which are all set forth in such bill of sale, all of which relate to the specific warranty.
It appears from an examination of the answer that the defendants have set forth and relied upon two defenses to the collection of said notes, and in addition to these two defenses pleaded a cause of action against the plaintiff by way of counterclaim. The defenses relied upon by the defendants are: (1) A specific written warranty that the stallion was a good breeder and in good breeding condition; (2) that the plaintiff fraudulently and deceitfully concealed the true condition of said ■stallion.
We are of the opinion that the express written warranty in a bill of ■sale excludes proof of any oral warranty made at the time or prior to the sale of the property in question. No further attention, therefore, need be paid to the defendants’ claim based upon the oral warranty. ■35 Cyc. 379, subd. 7, and list of cases cited thereunder.
In this case the defendants could offer testimony and proceed under -every defense or cause of action which they had. Each cause of action which the defendants had arose out of the same transaction. They had a cause of action for the breach of the specific warranty as to the breeding qualities of the stallion; a cause of action arising out of the .alleged fraudulent and deceitful representations concerning the stallion; and a cause of action based upon their counterclaim. Out of all such causes of action arising out of the same transaction they are entitled to •only one relief in damages. The defendants, under such conditions, could have maintained an action based upon either right of action alone, or based upon all their rights of action arising out of the same transaction, but would receive only one relief in damages. Needham v. Halverson, 22 N. D. 594, 135 N. W. 203; Murphy v. McGraw, 74 Mich. 318, 41 N. W. 917; Larson v. Calder, 16 N. D. 248, 113 N. W. 103; Humphrey v. Merriam, 37 Mich. 502, 35 N. W. 365; Freer v. Denton, 61 N. Y. 492.
The defendants had a legal right, even though the notes were not paid, to plead the breach of warranty and the damages consequent to *241such breach of warranty as a defense, and had the further right to plead their damages by way of counterclaim, the notes being nonnegotiable, and have such damages, if any, applied toward the reduction of the amount of said notes; or, stated in another way, have such notes applied in liquidation of such damages. Fahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580; Northwest Port Huron Co. v. Iverson, 22 S. D. 314, 133 Am. St. Rep. 920, 117 N. W. 372.
The action was brought when the first note became due, and the total amount of damages due, if any, are entitled to be pleaded and proved in this first action, and such damages, if any, applied to the notes in question. Bowe v. Minnesota Milk Co. 44 Minn. 460, 47 N. W. 151; Jungnitsch v. Michigan Malleable Iron Co. 121 Mich. 460, 80 N. W. 245.
It appears from some testimony in this case that the defendants tendered the horse back to the plaintiff, and that plaintiff would not receive the horse back. It appears, also, that the horse afterwards died while in the possession of the defendant. Having tendered the horse back, if we may consider such 'testimony as true, the fact that the horse afterwards died does not prevent the defendant from recovering whatever damages he may have sustained by reason of the breach of the warranties. The specific warranty contained a condition that the stallion should be returned if it did not correspond to the specific warranty and another stallion of a certain value should be exchanged. Even with such a condition in the specific warranty, if the horse died before any offer to return the same, still it seems that it would be proper for an action for damages to be maintained for the difference in the value of the stallion as warranted and represented at the time of the sale, and as he actually was.
The defendants assign forty-five causes of error. We feel that it is entirely unnecessary to consider all of them, for most of them result from a wrong theory of the case assumed by the trial court. The trial court limited the testimony to matters concerning fraudulent and deceitful representations, if any, made during the sale of the stallion, and would not permit the introduction of any testimony concerning the specific warranty contained in the bill of sale, on the ground that the conditions attached to such specific warranty were alleged not to have *242been complied with, and therefore the testimony offered was claimed to be incompetent. The trial court refused to receive testimony concerning the performance of or compliance with the specific warranty as to the breeding qualities of the stallion. We are convinced the court was in error in this regard, and the court should have admitted testimony concerning the conditions which were to be observed under the specific warranty. The exclusion of all such testimony relating to. such warranty contained in the bill of sale constitutes prejudicial and reversible error.
Considering errors Nos. 6, 7, and 8, it is evident that the court erred' in not admitting the testimony as to the number of mares bred to the stallion in the year 1913. The court having excluded the testimony concerning the breeding of such mares, and the defendant reduced his offer to writing, and with Stephen Bauclair on the stand testifying, the defendants in this case offered to show that one hundred eleven mares were bred between April 15, and July 15, 1913, and that the stallion was in the hands of a competent caretaker, properly cared for, and served not to exceed two mares a day, and of the mares so served not to exceed forty-four were gotten in foal, including dead as well as living colts. This testimony went to the very conditions which were set forth in the-bill of sale concerning the specific warranty. It was. the proper time and place to prove all the conditions which were contained in such specific warranty and such bill of sale. The defendant had a right to bring competent testimony into court to show and prove by such witnesses under oath, that each and every condition in such specific warranty contained in such bill of sale had been fully complied with. It was not incumbent upon the defendants to show that they had compiled the list of mares spoken of in the specific warranty, and sent such list of mares to the plaintiff by August 1, 1913. The parties were now in court under oath, with able counsel employed on either side capable of then and there determining the actual questions of fact under consideration. It cannot be said that the testimony of the defendant and his witness concerning such facts as to the number of mares bred, and their age, etc., would not furnish certainly just as true and correct information to the plaintiff as to all of such 'facts as could possibly be furnished by the defendants to the plaintiff by such written statement, which was referred to in the specific warranty. The *243defendants were present in court with their witnesses to prove all these facts by competent testimony under solemn oath, and the plaintiff would have every opportunity to inquire into the truthfulness of such statements, to procure the names, residences, and locations of the parties owning the mares, and any other information concerning the feeding and care of such stallion, and all the other facts set forth in such specific warranty. It was prejudicial error to exclude such testimony.
The majority opinion in effect holds that the furnishing of a list of mares prior to August 1, 1913, which list was claimed to be part of the warranty, was a precedent condition to the right of the defendants to recover on the breach of warranty. In other words, as we view it, the majority opinion in fact holds that parties contracting with reference to any subject-matter may also by the contract exercise control over the introduction of evidence in court in a subsequent action concerning the subject-matter, by making the furnishing of such evidence to one of the contracting parties a condition precedent to the right to maintain an action concerning the subject-matter of the contract, such as a breach of warranty. It is easily understood that the list of mares referred to is part of the evidence which would go to prove the breeding qualities of the stallion in question. It has no other purpose. It bears no other relation to the subject-matter of the action. The main question in the case, in fact, the only question is, Did the stallion in question comply as to breeding qualities with the warranty which was made concerning such breeding qualities? Any matter which would tend to prove or disprove whether the stallion was of the requisite breeding qualities as warranted would be merely evidence, and would not be part of the subject-matter of the contract. As we view it, it gives the parties the right, in contracting with reference to any subject-matter, to control and prevent the introduction in court of any evidence which is desired to be excluded concerning the subject-matter of the contract, or any of the qualities or conditions relating to such subject-matter, unless there is a full compliance with all precedent conditions concerning the service of the copy of the evidence, in the same manner and to the same effect as in this case. The list was tendered in the court, and Steinbach had the opportunity to examine it, and if he desired more time for a more thorough examination he could have applied to the trial court for an extension of time or a continuance of the case until such time as he *244could have made fuller investigation of the. list of mares so furnished, if he desired to do so. Eventually, then, after such examination, if Steinbach had desired to make it, the case could have been tried upon its merits, and the only merits or contention in the case is whether or not the stallion came up to the breeding standard as represented. This question now can never be determined. The merits of this action, that is, the breeding qualities of this stallion, can never be determined. Bauclair can never have any standing in court to prove that the stallion was not as warranted. The merits must remain always undetermined, and, as we have before said, the merits in this case, and the only real issue in the case, is the breeding qualities of the stallion.
Referring to defendants’ assignments of error Nos. 9 and 10, it is prejudicial error against the defendants to refuse to receive exhibits 5 and 9. Exhibit 9 was a complete record of said stallion in servie between April 15 and July 15, 1913, the plaintiff could have had an opportunity to examine such record and acquired all the information concerning the matters therein stated at the time of the trial. Referring to defendants’ assignment of error No. 41, wherein the court instructed the jury as follows: “Remember, you have not anything to do in this case with the matter of warranties, so far as the warranties are concerned, but you should only go back to talks leading up to this sale, — the talks between these two men, in order to determine whether or not Bauclair was led into the making of this contract through misrepresentation, through fraud and deceit, by Mr. Steinbach, as I have defined those matters to you.” Such instructions constituted prejudicial error as to the defendant.
The defendant in his answer, by way of counterclaim, set up a claim for damages against the plaintiff in the sum of $1,200, which damages were claimed by defendant to have resulted from a breach of warranty concerning the breeding qualities of the stallion in question.
Paragraph 5 of defendants’ answer contains the following allegations : “That the plaintiff sold said stallion to the defendants, lmowing that defendants wanted him for breeding purposes, and knowing that defendants relied upon his warranty and representation as to the. soundness and health of said stallion, and also as to the fitness of said stallion for breeding purposes, and knowing that said stallion was diseased and unfit for breeding purposes, as aforesaid.”
*245Paragraph 4 of said answer contains the following allegation: “That at the time of said warranty and representations and sale said stallion was not sound and healthy, was not a good breeder and in good breeding condition as warranted and represented by plaintiff, but was suffering from a disease of the legs known as sidebones, and also from a disease of the throat knows as acute laryngitis; was not a good breeder and in good breeding condition, all of which facts were well known to the plaintiff at the time he sold and warranted said stallion as aforesaid. That said warranty and representations were false and were made by the plaintiff with the intent to deceive the defendants and to induce them to purchase said stallion, and that the defendants were deceived and defrauded by the falsity of said warranty and representations.”
Paragraph 6 contains the following allegations: “That as soon as the defendants discovered that said stallion was unsound and unfit for breeding purposes as hereinbefore stated, they offered to return him to the plaintiff, and demanded a return of said notes, but that said plaintiff refused to accept said stallion, and that said stallion died in October, 1913.”
It appears, therefore, that the counterclaim in question was largely based upon the allegations in the answer concerning the falsity and breach of the warranty with reference to the breeding qualities of such horse, which breeding qualities had been warranted in the bill of sale. Leaving out all the allegations which refer to the soundness and health of the stallion, there yet remains in such allegations in paragraphs in such answer just mentioned a good cause of action in favor of the defendants against the plaintiff, which they have properly pleaded by way of counterclaim. The matters which are set forth and alleged as the basis of such counterclaim are parts of and originated out of the same transaction, and therefore were properly pleaded as a counterclaim. It is a well-settled principle of law where there has been a breach of warranty, express or implied, the buyer may set off or counterclaim his damages sustained by reason of such breach, in an action for the price of goods. 35 Cyc. 441, and list of eases therein cited from almost every jurisdiction within the United States sustaining this principle of law. The court clearly committed prejudicial error in refusing to admit testimony tending to prove the allegations of the answer which were the *246basis of the counterclaim. Questions concerning whether the stallion was properly fed, nourished, and cared for, the number of mares bred, their age and breeding condition, and the percentage which became in foal, were all important and material, and directly connected with and relative to the warranty contained in the bill of sale, which related to the breeding qualities of the stallion, and the exclusion of testimony bearing upon such questions was reversible, prejudicial error.
There is some testimony in the case relative to poisoned hay having caused the death of this stallion, together with several others of plaintiff’s horses. It is immaterial from what cause the stallion died. The fact that the stallion did die makes no difference in the cause of action. The right of action is based upon a breach of warranty in the bill of sale, as well as other alleged rights of action. As to the warranties, the measure of damages is the difference between the value of the stallion as warranted and his value in the condition in which he was, and this could be shown whether the horse was living or dead.