1 1. SALE Of of warranty011 ana fraud. I. Evidence was introduced tending to prove tbat tbe trade of tbe horse in question from Rief was negotiated between Rief and one Powell, as McCoid’s 5 agent, and tbat, before tbe trade was consummated by delivery, McCoid saw tbe horse and said be didn’t suit, tbat be did not like tbe appearance of running at tbe nose, and tbat otherwise tbe horse would suit very well if be knew be was sound, and tbat Rief then warranted tbe horse to be sound and all right, except tbat be bad a cold. Upon cross-examination the following question was then asked: “As a matter of fact, then, Mr. McCoid, when you asked him to warrant tbe horse as sound, you then believed from symptoms tbat he bad tbe glanders.” This question was objected to as immaterial and not cross-examination. The objection was overruled and tbe witness answered: “Was afraid be bad.” Tbe admission of this evidence is assigned as error. It is claimed tbat tbe question is not cross-examination because it does not relate to any part of tbe examination in chief. It does have direct reference to what McCoid testifies in chief be discovered respect*155ing the condition of the horse. It is further insisted that the testimony is immaterial, because, if Rief warranted the horse, McCoid’s belief as to his soundness could not affect his recovery. McCoid, however, grounds his claim upon false and fraudulent representations as well as a warranty, and to recover upon that ground of his claim he must show that he relied upon the representations. Further, McCoid claims damages for the death of another sound horse to which disease was communicated by the horse he bought of Rief. His right of recovery upon this branch of the case would be very materially affected by his knowledge of the diseased condition of the horse which he purchased. There was, in our opinion) no error in admitting this evidence.
2. practice : ciusion°oi :6X error without prejudice. II. Appellant assigns as error the exclusion of the note given to him by Proctor on the purchase of the horses. It is claimed that by this ruling the appellant was precluded from showing his interest in the sub- . r, . ject matter. Put the appellant was allowed to introduce the chattel mortgage on the horses for $200, and he testified that he sold them to Proctor for $200, and that he had never received any pa/ for them. Besides, the court instructed the jury that the fact of the sale of the team by McCoid would not affect his right to recover of Rief. Under these circumstances, it is apparent that the rejection of the note could not have worked the appellant any prejudice.
3_. ln_ struction. III. The appellant assigns- as error the refusal of the court to give the first instruction requested by him. This instruction is fully covered by the third instruction gjven fty the court on its own motion.
4. instrucudice’ IV. It is insisted that under the instructions the right of appellant to recover for the sound horse owned by him, which he alleges was diseased by the horse bought Rief, was made to depend upon his ownership of the horse at the time the disease was communicated. The jury, however, did not find the appellant entitled to recover for either horse. They must, therefore, *156have found that there was a failure of proof of the warranty or the false representations. If it should be conceded that this instruction was, as to the sound horse, erroneous, still it is clear, in view of the general verdiet for Riefj that the error was without prejudice.
5. verdict: support. Y. It is insisted that the verdict is not supported by the evidence. The evidence is conflicting and does not warrant our°disturbing the verdict.
Affirmed.