
    16575.
    Risener v. Kidd.
    Sales, 35 Cyc. p. 447, n. 45; p. 464, n. 90.
    Decided February 13, 1926.
   Stephens, J.

1. In a suit upon a promissory note given for the balance due upon the purchase price of a mule, a plea in the nature of a recoupment, which seeks to recover of the plaintiff money theretofore paid upon the purchase price in excess of the alleged value of the mule, and which alleges a breach of warranty by the plaintiff, and that the defendant overpaid the plaintiff in the amount named, but nowhere alleges upon what terms or conditions, if any, the alleged overpayments were made, fails to set out any right in the defendant to recover against the plaintiff. Such plea was properly stricken upon demurrer. Civil Code (1910), § 4352.

2. The evidence authorized the inference that the defendant kept the mule for about a year after he bought it, and that in the meantime he made no complaint as to a breach of warranty. A jury were authorized to infer, from the evidence, that the warranty had not been breached as claimed by the defendant, and that, .if there was a breach, it was waived by the defendant. The verdict for the plaintiff was authorized.

3. The trial court did not err in refusing to sustain the defendant’s certiorari.

Judgment affirmed.

Jenldns, P. J., and Bell, J., coneur.

Certiorari; from Hart superior court—Judge W. L. Hodges. May 7, 1925.

J. E. & Emmett Shelton, for plaintiff in error.

B. B. Zellars, contra.  