#### CHARLES S. MOORE *vs.*KADER PIERCY.

Where A purchased a horse, to be returned at the end of two days, if he did not answer the description given of him, and the two days elapsed without the horse being returned: Hem>, that the contract was absolute, and that A cannot discharge himself from liability by showing that the horse was not as good as represented.

This was an action of assumpsit, tried before Judge .Ellis, at the Fall Term, 1853, of the Superior Court for the County of Chowan.

The plaintiff declared for $25, the sum alleged to be due from defendant, upon an exchange of horses. Plea: *Won assumpsit.*

The defendant agreed to give his own horse and twenty-' five dollars for the horse of the plaintiff, provided the latter was a No. 1 farm horse. That he would try him for two -days, at the end of which time the horse was to be returned, if he did not suit. The defendant received the horse, worked him, and did not return him. The horse proved to be not .as good as represented, but unsound.

The plaintiff’s counsel requested his Honor to charge? that the conditional promise to pay $25, became absolute upon the defendant’s keeping the horse, after the two days, :-and that in law such was the contract. ' That, if he was aware of his defects within two days, and failed to return him, the contract became absolute, and the plaintiff was entitled to recover.

His Honor charged that the jury must determine what the contract was. That, if it was the understanding of the parties, that the twenty-five dollars were to be paid in ease the horse was a good work horse and sound, and that the promise was to become unconditional and absolute upon the ■defendant’s keeping the horse beyond that time, then the plaintiff ought to recover. But if the time was given in *132order to enable tbe defendant to determine whether he would make the exchange at all, and the $25 were only payable in case the horse was such as the plaintiff described him to be, and he was defective, then .the verdict must be for the defendant.

The verdict was for the defendant. Rule for a *venire de novo.*Rule discharged, and judgment for the defendant, from which the plaintiff appealed.

*Smith and*Heath, for the' plaintiff.

No counsel for the defendant.

Battle, J.

The plaintiff was, in our opinion, entitled to the instructions which he .prayed, and his. Honor erred in refusing to give them. These instructions were, so far as the defendant could be affected by them, substantially the same, and were clearly required by the testimony. There was nothing in the case to show that if the defendant kept the plaintiff’s horse, beyond the day allowed for trying him, he was not, on account of his proving unsound, to pay the twenty-five dollars, the agreed difference in the value of the two horses. On the contrary, the testimony showed that the plaintiff was to pay fer the horse, if he should keep him after the two days trial. His Honor had no right to submit to the jury a view of the case not sustained by the evidence, nor by any fair inferences deducible from it.

But, perhaps, it may be said, that it appeared from the testimony that the plaintiff’s horse was unsound, and that he ought not therefore to -be permitted to recover more than what he had already received, to wit, the defendant’s horse. To this the case of McEntire v. McEntire, recently decided in this Court, and reported in 12 Ired. 800, is a decisive answer. It was then held, after a thorough examination of the subject, that “when the property bargained for i» delivered, an action for the *price .agreed on*cannot be de*133feated, except in cases where, if the money had been paid, it might be recovered back in an action for money had and received. There must be a total failure of consideration, and not a mere right to damage.'’, although the damages may amount to the whole price.”

In no Anew can the judgment be sustained, and it must be set aside, and a *venire de novo*awarded.

Per Curiam. *Venire de novo,*