
    Robinson & Shanks v. Pearce.
   Fish, C. J.

Plaintiff in his petition as amended alleged in substance the following: In a mule trade between himself and defendants, a partnership dealing in live stock, the latter valued a pair of mules owned by them at five hundred dollars, for which plaintiff gave his two mules valued at three hundred and fifty dollars, and executed to them his promissory note for one hundred and fifty dollars. At the time of the bargain it was agreed by defendants that if the mules delivered to plaintiff “did not gait and match to suit him and prove satisfactory in every respect” he could return them to defendants and they would deliver to him in exchange therefor two mules, of the same valuation, “that suited him in every respect as to size, gait, etc.” The mules first received by. plaintiff did not suit him, and he returned them to defendants and received in exchange therefor two other mules. This pair was likewise unsatisfactory, “and he returned them to defendants, and demanded of them that they return to him his mules and his note, or give him other sound and healthy and otherwise satisfactory mules as they were in duty bound to do.” Defendants “accepted back said last two mules, and promised to furnish to plaintiff two mules that were satisfactory and sound, but failed to do so, nor would they return to him his two mules, or his note, they claiming that they had sold them.” Plaintiff prayed damages in a named sum, and “that the note given as aforesaid, there being no consideration therefor, or the consideration having wholly and entirely failed, he delivered up and canceled,” and for process. Held, that the court properly overruled a general demurrer to the petition.

June 26, 1916.

Equitable petition. Before Judge Gilbert. Taylor superior court. May 10, 1915.

E. Wohlwender and E. J. Wynn, for plaintiffs in error.

H. C. Cameron, S. T. Pinlcston, and Hatcher & Hatcher, contra.

Judgment affirmed.

All the Justices eoneur.  