¶1By the Court. —
¶2delivering the opinion.
¶3If the presiding Judge had granted a new trial in this case, we should have affirmed his judgment. In denying the motion, he has not, in our opinion, been guilty of such a flagrant abuse of his discretion as to' compel us to remand the cause for a rehearing.
¶4The testimony, fairly considered, is not necessarily conflicting. It amounts to this: After a partial trial of the horse, Mr. Hadley agreed to purchase him at the price stipulated, and took him. home. Upon further trial, he became dissatisfied, and offered to return the horse. Dr. Bower, acting as the agent of Ellis, refused to take him back, but advised Mr. Hadley to keep him until Ellis came, which would be in a few days, disclaiming having any authority to rescind the trade himself. Ellis again comes back with the horse, and, by permission of Dr. Bower, turns him into his lot. It seems to be pretty clear, that neither party looked upon this as a rescission of the contract. Bower testifies positively, that the sale was absolute, and that it was not annulled.
¶5This being the proof, and there being no warranty either as to the soundness or quality of the horse, however hard the bargain may be — as it doubtless is — we can not relieve the buyer against the consequences of his own haste, confidence or carelessness.
¶6JUDGMENT.
¶7Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.