majority">Rylahd, Judge,

delivered the opinion of the court.

This was an action commenced before*a justice of the peace, by Smith against Steinkamper, for the sum of ten dollars, upon the following case. Smith and Steinkamper made a trade concerning a horse and a yoke of oxen. Smith let Steinkam-per have his horse for the steers and for ten dollars — Smith warranted his horse to be sound and to work well; if not, he would take him back and give up the steers.

Steinkamper delivered the steers and took the horse ; the ten dollars were not paid down, but were to be paid by Steinkam-per. Shortly after the trade, the horse proved to be unsound and not to work, well, and died in a month or so. As soon as Steinkamper found the horse to be unsound and not to work well, he offered to return him, and demanded his steers of Smith. Smith refused to give up the steers, and sued Stein-*152kamper for the ten dollars. Steinkamper set off the price of the steers, and the value of their labor, between the time of the trade and the suit, amounting to fifty-five dollars. The horse was valued at the time of the trade at fifty dollars, and the steers at forty dollars.

The jury found for the defendant the sum of forty dollars. The plaintiff appealed to the Commissioner’s Court, where judgment was again rendered against plaintiff for forty dollars, in favor of defendant, and he appealed to this court.

The record shows, that the plaintiff asked the court to instruct the jury, “that in the present case the defendant cannot set off the value of the steers to the plaintiff’s claim, but he must resort to his cross action,” and “ that the said value could only be pleaded as failure of consideration,” both of which the court refused, and the plaintiff excepted.

The instructions given by the court embraced the law of the case. The second instruction informs the jury that if they believe that defendant paid in part for said horse a yoke of oxen, and that the agreement between the parties was, that the oxen should be returned to the defendant, and the horse given up to the plaintiff, if found to be unsound and unable to work well, and that said horse was unsound and unable to work well, when sold, and that the defendant, upon ascertaining the fact, offered to return said horse, and demanded his oxen, the defendant may, in this suit, set off the value of said oxen against the demand in this cause. ”

The court also instructed the jury, that “ if the horse was warranted sound, and proved unsound, and defendant offered to return Mm, and plaintiff refused to take him back, then, the plaintiff could not recover his ten dollars,” &c.

We consider that the case was put very fairly before the jury by the court; that the instructions given were correct, and were warranted by the evidence ; and the one refused was properly refused. We are satisfied with the proceedings of the court below. The evidence showed plainly a contract to take back the horse, if he was unsound and would not work well; *153also showed that he was unsound and unable to work well. Now, the whole defence consists in objecting to the defendant’s offset, and to the allowance of such offset, instead of driving the defendant to his cross action. We think one suit might well have sufficed to settle this controversy, and that two verdicts might have satisfied this plaintiff.

The judgment is, therefore, affirmed, the other Judges concurring herein.

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