#### Lu Green, Jr., Appellee, v. William Ryan, Jr., Appellant.

Gen. No. 7,985.

1. Customs and *usages*— presumption *of dealing with reference to custom as authority for proof thereof.*Evidence of general custom in a particular market may be introduced on the presumption that he who deals in that market knows the customs thereof.

2. *Sales*— implied *warranty of animal purchased for breeding purposes.*Implied warranty that a cow is fit for breeding arises from her purchase at a sale of breeding cattle.

3. Appeal and *ebbob*— presumption *as to verdict where weight of evidence depends upon credibility of witnesses.*If the weight of evidence depends on the relative credibility of witnesses and the jury found for appellee, the Appellate Court cannot say that the verdict was against the weight of the evidence.

4. *Sales*— demand *as prerequisite to recovery of purchase price on failure of warranty.*Without prior demand for repayment vendee may recover for the purchase price of a cow failing to fulfil the warranty to breed, upon her return to the vendor.

5. *Sales*— when *contract rescinded by retention of subject after return by vendee.*Contract of sale of a cow was shown to be rescinded by both parties when vendor kept her after her return to him by the vendee for failure to breed as warranted.

Appeal by defendant from the Circuit Court of Vermilion county; the Hon. John H. Mabshall, Judge, presiding. Heard in this court at the April term, 1926.

Affirmed.

Opinion filed November 6, 1926.

Acton, Acton & Snyder, for appellant.

Gunn, Penwell & Lindley, for appellee.

*467Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted by the appellant, William Ryan, Jr., from a judgment in assumpsit, for $770, which was rendered against him in the circuit court of Vermilion county at the suit of the appellee, Lu Green, Jr. The appellee sues to recover for the purchase price of a cow (less the amount of a credit of $230, to which it is conceded the appellant is entitled), on account of an alleged breach of a warranty of the cow, which the appellant sold him. It appears from the evidence that the cow in question was purchased from the appellant at a public sale of registered breeding cattle at Danville, Illinois. The appellee testified that at this sale he purchased five head of cattle, including the cow mentioned, known as “Missie 176”; that Missie at the time of the sale had a calf at her side about 8 or 9 months old, and was represented to be with calf; that he went to the appellant before the sale and told him that he would like to bid on Missie but did not have any use for the calf at her side. And thereupon the appellant had the cow put up for sale without the calf, and he bought her. He also testified that before the purchase he inquired of the appellant, whether she was “due to calve” and that the appellant told him she was due to calve in the following fall, and that afterwards the auctioneer, who conducted the public sale, made the same representation with reference to the breeding condition of the cow when he put her up for sale, and before he bought her. The purchase price of the cow was $1,000, and the appellee gave his note therefor, and afterwards paid the same. The appellee also testified that in making his bid he relied on the statements of the appellant and the auctioneer, concerning the breeding qualities of the cow. He also testified that after he bought the cow she was shipped to hfm; and that he received the cow at his farm at In*468dianola in a very nice condition; that on the sixth day of July the cow came in heat, and that she was then bred to one of Bis registered short horn bulls, called Master of Arts, but that she didn’t get with calf; that thereafter she was again bred to the same bull, also regularly bred during that fall to several other bulls without success, and that thereupon he notified the appellant that the cow had not been with calf, and that thereupon the appellant told him that he could return her to him; and that he would breed her; and that the cow was then returned to the appellant early in the following Spring of 1921. Appellee also testified that after that he never received any notice from the appellant that the cow had been bred, or was ready to be returned to him; that he had but one conversation with the appellant about the cow after she was returned, namely, in the latter part of .the season of 1921; that at that time the appellant informed him that he had a veterinary to treat the cow, “to- see if she could not get with calf.” The appellee also testified to a general custom prevailing among traders of registered breeding cattle, with reference to this kind of cattle and cows sold at a public sale, and that, according to this custom, if a cow doesn’t get with calf, she is returned to the seller, and bred to the. seller’s bulls; that if she doesn’t come with calf then, he either returns the money to the purchaser, or he makes him a different buy, or gives him another animal of like value which is satisfactory. A number of witnesses testified to the general custom prevailing in relation to sales of breeding cattle. The evidence also shows that after the cow in question had been returned, appellant continued to hold her, and has retained possession of her ever since that time; and the cow was in his possession at the time of the trial, which was more than four years after the cow had been returned to him by the appellee. One of the grounds urged for reversal of the judgment is that the evidence admitted *469by the court concerning the general custom referred to was erroneous. We are of opinion, however, that the evidence was competent. It was- proper for the jury to consider this custom in connection with the contract of sale, and the conduct of the parties with reference to the cow, after the sale, and after her return to the appellant. Where there is a general custom or usage of trade prevailing, the parties concerned are presumed to act and contract with reference to such custom and usage. *Doane v. Dunham,*79 Ill. 131; *J. B. Lyon & Co. v. Culbertson, Blair & Co.,*83 Ill. 33. A party dealing in a particular market is presumed to know all customs of that market bearing upon the transactions carried on, and to act in accordance therewith. *Bailey v. Bensley,*87 Ill. 556; *Cothran v. Ellis,*107 Ill. 413. And it is well settled that where a sale is made of breeding cattle, an implied warranty arises that the animals sold are fit for breeding purposes. 2 Mechem on Sales 1173, § 1354; *Edwards v. Dillon,*147 Ill. 14. It was a controverted question in the case whether or not the appellee made his purchase based upon the representations and statements of the appellant and his auctioneer, as testified to by him, or made the purchase in accordance with the terms and conditions of the warranty set forth in the catalogue, which appellant had printed and circulated among prospective purchasers at his sale. Claude P. Madden, one of the auctioneers at the sale, testified that he “called the audience together and asked them to get on the seats, and I introduced Mr. Millne as the auctioneer; and Mr. Millne called their attention to the terms and conditions of the sale, on page 4 of the catalogue. ’ ’ But he also testified that all the cattle at the sale were sold as registered breeding cattle. And the testimony of Madden referred to does not appear to be contradictory of the testimony of the appellee concerning his conversation with the appellant before the sale, nor about the special an*470nouncements made by the auctioneer Millne in reference to the cow in question. There is also a sharp conflict in the evidence about the purpose for which the appellee returned the cow to the appellant. The appellee testified that appellant told him he could return her, and he would breed her to his bull, while the appellant’s version of the same conversation is that the appellee said to him, “Bill I have had bad luck with Missie cow. She lost her calf. ” Whereupon, appellant replied, “That’s too bad. If you want to, you can send her back over and I will breed her to the old bull and won’t charge anything for it.” Appellee denied that he ever told the appellant or anyone that the cow Missie had lost her calf, and testified that Missie was not with calf at the time of the sale, and that she never had a calf after he purchased her. Whether the cow in question was with calf at the time appellee purchased her or not, and whether she was barren at the time of the sale to the appellee, were controverted matters in the case. It is contended by the appellant that the verdict of the jury is manifestly against the weight of the evidence on the questions of fact in issue. The determination of the weight of the evidence depended in this case upon the credibility of the witnesses who testified, and especially the respective credibility of the appellee and the appellant. It is evident from the verdict that the jury reached the conclusion that the appellee’s version of the transactions and conversations between the parties was the most worthy of credence, and we would not be justified in saying, in considering the whole of the evidence, that they were not warranted in reaching that conclusion. We cannot say, therefore, that the verdict is against the weight of the evidence, and under the circumstances here presented a court of review would not be warranted in reversing the judgment on that ground. *Wentworth v. Chicago City Ry. Co., 210*Ill. App. 116; *Alton Railway, Gas & Electric Co. v. Seiferth,*95 Ill. App. 134; *471*Rackley v. Rackley,*151 Ill. 332; *Illinois Life Ins. Co. v. Lindley,*110 Ill. App. 161; *Springfield Consol. Ry. Co. v. Keiser,*130 Ill. App. 56; *Kirlin v. Chittenden,*176 Ill. App. 550; *Morgan v. Ryerson,*20 Ill. 343. It is also contended that it was incumbent on the appellee, before his right of recovery was established, to make a demand on the appellant for a return of the purchase money. It may be said in reference to this contention that where an animal is warranted and fails to fulfil the warranty, it may be returned to the vendor by the vendee, and when returned the vendee thereupon becomes entitled to recover the purchase price paid, without any previous demand for repayment. *Morgan v. Ryerson, supra; Caswell v. Coare,*1 Taunt. 566; *Kugel v. McEnroe, 115*Ill. App. 419; *Woodford Distilling Co. v. Remington Typewriter Co.,*174 Ill. App. 244; *Kennedy v. North Avenue Motor Sales Co.,*211 Ill. 510. The inference is clear from the evidence that the contract of sale involved, after the return of the cow- to the appellant, was treated by both parties as rescinded, and the permanent retention of the cow by the appellant without any explanation to the appellee, after the unsuccessful attempts which he made to get her with calf, justifies the conclusion that the appellant regarded the sale as rescinded in accordance with the custom referred to, and that the cow had again become his property. Both the appellant and appellee treated the cow as having been permanently returned to the appellant.

We find no substantial error in the instructions given for the appellee, nor in the refusal of instructions requested by the appellant. For the reasons stated, the judgment is affirmed.

*Affirmed.*