¶1delivered the opinion of the court.
¶2Since the decision made by this court in the case of Wade v. Scott, 7 Mo. 509, which was rendered in August, 1842, it has been considered as the settled law in this state that in a suit for the consideration money arising on the sale of a slave, the defendant, in case there was fraud or a breach of warranty, may give evidence showing the amount of damages sustained by him by reason of the fraud or breach of warranty in diminution of the stipulated price. “ It is more reasonable,” said the judge who delivered the opinion of the court, “ that when a suit is brought to recover the price of an article, that any reduction of the stipulated price, to which the defendant may be entitled either from a fraud or breach of warranty in the sale, should be made in the action in which the price is sought to be recovered, than that he should be driven to his cross action for a redress of the injury.” In House v. Marshall, 18 Mo. 368, the same doctrine is held. In this case the notes sued on were given for the purchase money of land bought by defendant of the plaintiff. We held that the defendant might recoup the damages sustained by him by reason of the false and fraudulent representations of the plaintiff as to the quality and advantages of the land. (See also Grand Lodge of Masons v. Knox, 20 Mo. 433.)
¶3*433In this case the recoupment of damages on account of the breach of the warranty made on the sale of the slaves, for the purchase of whom the note sued on was given, was the only defence set up and relied upon in the defendant’s answer. The instruction then given by the court on behalf of the defendant was unobjectionable. The evidence offered by defendant conducing to show there was a warranty, and that offered by plaintiff conducing to show there was none, the matter was properly left to the finding of the jury. The instructions given by the court for the plaintiff are not complained of, and the record shows that all were given which he asked.
¶4As to the suggestion of surprise which is made by the plaintiff in his affidavit in support of the motion for a new trial, in our opinion, there is no weight in it. At most, it set up as an excuse his own negligence. The record shows that there had been two or three continuances — the case had been pending for some eighteen months. He might have known the defence relied on. He was party to the whole transaction. He knew what had been before the persons who had been once requested to arbitrate the difficulty. He had made his own statement and knew what the defendant relied on before them. We can not regard this suggestion of surprise as entitled to any consideration.
¶5Upon the whole record, there is no error authorizing a reversal.
¶6the judgment is affirmed.