
    Fuller v. Wade, Appellant.
    
      Affidavit of defense — 'Warranty of horse — Promissory notes— Practice, G. P.
    
    In an action upon promissory notes given for tbe purchase of a horse, an affidavit of defense is insufficient, which sets up a breach of a guaranty to the effect that if the horse should not prove as guaranteed he should be replaced “with another horse of the same breed and price, upon delivery to me of the above named horse in as sound and good condition as he is at the present, or to return the notes given for him,” without any averment that the horse sold had ever been delivered or offered to be delivered to the vendor after discovery that it was not what it had been represented to be.
    Argued April 22, 1912.
    May 13, 1912:
    Appeal, No. 128, Jan. T., 1912, by defendants, from order of C. P. Crawford Co., Nov. T., 1908, No. 54, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ira C. Puller v. George C. Wade, et al.
    Before Briown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on promissory notes. .Before Williams, P. J., specially presiding.
    Tbe facts are stated in tbe opinion of tbe Supreme Court.
    
      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.
    
      Otto Kohler, for appellants.
    
      Manley O. Brown, for appellee.
   Per Curiam,

This action was upon three promissory notes given by tbe appellants to Russel lams for tbe purchase of a horse. The affidavit of defense would be insufficient even if lams were the plaintiff, and it is, therefore, immaterial that the appellee may not be a holder for value without notice. The defense set up by the appellants is a breach of a written guaranty given to them by lams. A copy of the same is appended to the affidavit of defense, and the following is the clause upon which the appellants rely: “In case he (the horse) should not prove so, I agree either to replace him with another horse of the same breed and price, upon delivery to me of the above named horse in as sound and good condition as he is at present, or to return the notes given for him.” This guaranty was a conditional one, and imposed upon the appellants the duty of complying with its conditions before they could aver a breach by lams. There is no averment in the affidavit of defense that they, or any one of them, ever delivered, or offered to deliver, the horse to lams, or to any one for him, after their discovery that the animal was not what he had been represented to be. The affidavit does not even aver that lams was ever notified of the failure of his guaranty. In the absence of any averment of compliance by the appellants with the conditions of the guaranty upon which they would now stand, they have no right to have their notes returned, and their liability upon them continues. This was the correct conclusion of the court below, and the judgment is, therefore, affirmed.  