Palmer v. Wilks ( 1856 )

Lipscomb, J.

The only error we propose to notice, is the striking out the answer of the appellant, setting up in his defence that the note sued on was given for a horse purchased by him from the plaintiff below, the appellee in this Court, that was unsound and worthless. It is alleged that the horse was unsound and wholly worthless to the defendant, and that the plaintiff had warranted the horse to be sound, and knew that he was unsound at the time, to the great damage, &c. To this plea the plaintiff filed a peremptory exception, which was sustained by the Court and the plea stricken out. We believe the plea was good ; at any rate it was so, on general demur rer. It was not necessary to aver an offer to return, if the horse was valueless. It is not like the case of Jackson v. Marshall, 6 Tex. R. 324, where, by the terms of the contract, the purchaser was bound to return the gin stand, if it proved not to be a good one. For this error the judgment is reversed and cause remanded.

Reversed and remanded.