¶1This is a suit on two promissory notes. The defence rests on the ground that the consideration has failed. The defendant alleges that they were given by him to the plaintiff as the price of two mules, which were warranted by the latter to be sound aud free from any disease; that said mules turned out to be worthless in consequence of diseases, one of them having died shortly after the sale. He therefore, prays that said notes be declared null and void, and returned to him.
¶2The defendant has appealed from a judgment rendered against him by the court below in favor of the plaintiff:
¶3In this court, no argument has been presented on the part of the appellant. After a careful examination of the evidence, we have been unable to discover any error in the judgment to his prejudice. It is true the evidence shows that a mule purchased by him from the plaintiff died shortly thereafter, but it does not appear that the disease of which it died, existed at or previous to the time of the sale. In regard to the other mule, no evidence appears to have been offered on the trial below, nor is there any evidence showing that the notes sued upon, constituted the price of the alledged sale.
¶4The appellee in his answer prays that the judgment may be affirmed with damages, on the ground that the appeal is frivolous. We are of opinion that the prayer should be allowed, as it does not appear to us that any ground existed on which the appellant could base any reasonable hope for a reversal of the judgment.
¶5It is, therefore, ordered and decreed, that the judgment of the Court below be affirmed with costs ; and it is further decreed that the plaintiff recover of the defendant the sum of forty dollars as damages.