
    Kelley v. Burnell.
    
      Tuesday, June 5.
    APPEAL from the Orange Circuit Court.
   Perkins, J.

Suit upon a note. Judgment for plaintiff.

. The facts of the case are these:

D. W. Rupert sold a piece of land to William Kelley for 800 dollars, and purchased a pair of horses of Robert Akey for 375 dollars. As a part payment for the land, Kelley gave his note to Rupert for 375 dollars, but made payable to Akey, which note Rupert delivered to Akey, who accepted it in payment for the horses sold above described. There is a dispute whether the note was given for a part of the consideration for the land, or for the horses, and the latter applied towards payment for the land.

R. Parrett, J. E. McDonald, and A. L. Roadie, for the appellant.

J. B. Howe, for the appellee.

Akey subsequently assigned the-note to Rupert, and took back, the horses, and Rupert assigned the note to Bivrnell, the plaintiff.

If the note was given in consideration of the horses, we are satisfied the sale of the horses was complete. The title and risk passed at the purchase and giving of the note, though, at the request of the purchaser, the seller agreed to keep the horses for the purchaser'ten days, and, within that time, bought them back. Ind. Dig. 725.

If the note was given for the land, then we find nothing in the record showing a rescission of the contract, or a failure of title that will avoid the note. See Small v. Reeves, at this term .

According to numerous late decisions, it may be observed the specifications in the motion for a new trial were too vague to present questions to the Court below that have been argued in this Court.

Per Curiam.

The judgment is affirmed with 1 per cent, damages and costs. 
      
      
        Ante, 163.
     