It appears from the evidence that appellant, on the 22nd of March, 1858, purchased of Blackburn two horses, for the sum of five hundred dollars, payable in lumber, one half by the first of June, and the other by the first of September following. That one of the animals was lame at the time, and that Blackburn warranted it to recover. That appellant received the possession, and he afterwards let Rankin and Wiley have the horse which had been warranted, for which they, with the assent of appellant, on the 14th day of December, 1858, gave their note to Blackburn for two hundred and fifty dollars, and appellant at the same time gave the note sued upon for the remainder of the five hundred dollars. By this arrangement appellant was released from all liability for the amount for which Rankin and Wiley had given their note. There was some evidence tending to show that the horse had not recovered from this lameness. And it is urged as a defense, that there was a breach of warranty, and the damages claimed to have been thus sustained are sought to be recouped from this note.
The record fails to show that any price was fixed upon each of the horses, or whether they were regarded as of equal or unequal value. But from the subsequent arrangement of the parties, Rankin and Wiley considered the horse that was warranted as being worth two hundred and fifty dollars, because they gave that price for the animal. ' And it must be true that appellant thought the other animal of equal value, as he gave his note for the like sum. And it does not appear that he made any objection to this arrangement, or that he claimed any damages or deduction from the purchase money on account of a breach of the warranty. The conclusion is almost irresistible, after having the horse almost nine months, and then selling him to others, and giving his note after that period of time had elapsed, if there had been a breach of the warranty, that it would have been claimed. This defense looks to us very much like an afterthought, and without any merit. If the breach had then occurred, and it was not claimed when the note was given, it was thereby waived. . If it did not occur till after he had sold the horse, he not having become liable on a warranty of the property, he has no right to urge that as a defense to this note. The entire matter seems to have been satisfactorily arranged by the parties at the time the note was given, and we are unable to see that appellant has sustained any damage, even if there was a breach of warranty, as he has sold the horse, and for aught that appears, for all or even more than he gave for him.
We are unable to perceive any error in this record for which this judgment should be reversed, and it is therefore affirmed.
Judgment affirmed.