
    William Quis, Respondent, v. Martin Halloran, Appellant.
    Judgment of the Municipal Court affirmed, with costs.—Appeal from a judgment of the Municipal Courc in favor of the plaintiff and against the defendant.—
   Woodward, J.:

The plaintiff brings this action to recover seventy-five dollars, the purchase price of a horse alleged to have been sold to the defendant. The defendant claims that he purchased the horse conditionally; that he was to take the horse on trial for two days, under a warranty that the animal would draw a load of three thousand to thirty-five hundred pounds anywhere, and if the horse proved satisfactory that he would pay the sum of seventy-five dollars in two payments. There is no substantial disagreement as to the facts, except as to the questian of warranty and the conditional sale. The learned judge of the Municipal Court, after hearing the evidence, which was conflicting as to every material point, has found in favor of the plaintiff, and a careful reading of the evidence shows no substantial ground on which a reversal might be based, The defense of a warranty and of a eonditional sale are in a measure inconsistent; if the defendant was to take the horse only upon his proving satisfactory, there was no occasion for the warranty that he would pull the load stated; while if the defendant relied upon the warranty there was no conditional sale, and the evidence is not such as to support either defense, the burden of establishing an affirmative defense being upon the defendant. In so far as the swelling upon the horse’s leg was concerned, the defendant was in as good a situation to judge of its effect upon the horse as the plaintiff, and he must be deemed to have purchased the horse with full knowledge of the defects to which his attention was called at the time. Any representations of the plaintiff | that the swelling would disappear after the horse had been worked was at best a mere expression of opinion, and the defendant, who testified that he had driven horses for twenty years or more, was in as good a position to judge of this as the plaintiff, especially as the matter was called to his attention at the. time of the sale, and no effort was made to disguise or conceal the defect. The judgment appealed from should be affirmed, with costs. All concurred.  