This was a suit by appellee against appellant, brought on a promissory note, dated March 25, 1876, for $500.
The defense set up to the note was, that it was the balance of $1,500 agreed to be paid by appellant to appellee for the purchase of a stallion horse called “Wonder.” That the horse was warranted to be sound except a small pimple on the leg, and that would not hurt him, and that the horse was entirely worthless; also j>lea of set-off for the $1,000 paid.
The evidence shows that Charles Putt purchased one-half interest in the horse two days after the purchase from appellee, Charles Putt agreeing to pay $500' for one-half interest. The evidence in this case tended strongly to show that the horse was warranted as claimed by appellant; that he was unsound at the time of the sale, being affected with laminitis, and bog-spavin, and was thick winded; that he was worth greatly less than he would have been if as good as warranted. That the unsoundness of the horse grew worse in consequence of disease contracted before sale to appellant, and that the greatest depreciation in his value became apparent after Charles Putt purchased the half interest, The issues in the cause were tried by a jury.
On the trial of the" cause, the court, against the objection of appellant, gave for ajDpellee to the jury the following instructions:
6. “ The court instructs the jury for the plaintiff that, if they believe from the evidence that the defendant sold an undivided interest in the’ horse within a few days, that then the defendant cannot in any event set-off any damages accruing after said sale.”
8. “ The court further instructs the jury that, although they may believe that there was a warranty of the horse, yet, unless the jury further believe from the evidence that there was a substantial breach of warranty, the jury wilhfind for plaintiff for the amount of the note and interest • to this date.”
The giving of the above instructions, among other matters, is assigned for error.
We are of the opinion that the giving of the eighth instruction was clearly error, when given in this case under the state of the evidence. If there was a breach of the warranty at all, which was a question for the jury to determine, the appellant was entitled to have this issue found in his favor, and if any damages resulted from the breach, however small, it should have been set-off against appellee’s demand. W. J. Estop et al. v. W. H. Fenton et al. 66 Ill. 467; Taylor v. Beek, 13 Ill. 49.
The sixth instruction, which informed the jury that all damages accruing after the sale of the horse, to Charles Putt could not be set-off, was well calculated to mislead the jury. In a legal sense, all damages should be considered to accrue at the time the warranty was made and the sale consummated, but the evidence and development of the injury may appear afterward.
Yet we think that the instruction was well calculated to convey the idea to the jury that the words “ damages accruing after the said sale,” meant damages developed after the sale, and that they should not allow any damages which became first apparent after the sale of the half interest to Charles Putt.
The instruction cannot by any reasonable construction mean, as is contended by counsel for appellee, that damages should not have been allowed for injuries arising from causes originating after the sale to Charles Putt.
The error assigned that the note varied from the one set out in the declaration is not well taken; such objection cannot prevail if made for the first time in this court. Doyle v. Frank Douglas Machine Co. 73 Ill. 273; Wm. Thompson v. George Hoagland, 65 Ill. 310.
Also the objection raised that the demurrer to the eighth replication was not disposed of, comes too late in this court. There should have been issue joined on the demurrer in the court below. By going to trial without this, the appellant waived the benefit of his demurrer. Hopkins v. Woodward, 75 Ill. 62.
The court below should have granted a new trial, and for not having done so, this cause is reversed and remanded.
Reversed and remanded.