¶1delivered the opinion of the court:
¶2In the sale of the,horse by Boyd to Day & Gorrell, there was a general warranty of title, and a special guaranty that they would not be disturbed in his possession, by the military authorities of the United States, because of a brand upon the shoulders. Day & Gorrell, having' sold tbe horse, soon thereafter, some soldiers took *618both, the horse and purchaser to their camp, where the horse was retained by the officer in command, but the purchaser was released from arrest.
¶3Day & .Gorrell refunded the purchase price to their vendee; but whether this was done voluntarily or because of their general warranty of title, or special guaranty because of the brand on the horse, does not appear.
¶4Boyd having sued Day & Gorrell upon a note which he held upon them, they pleaded the loss of said horse by way of counter-claim and set-off; to which Boyd replied, without demurrer or other motion, and went to trial upon the issue.
¶5However improperly pleaded as a counter-claim, not being connected, in any manner, with the note sued on, or even if improper as a set-off, which we do not even intimate, yet all objections thereto were waived by the replication and issue.
¶6The court was asked, by Boyd’s counsel, to instruct the jury, that if they believed from the evidence that Day & Gorrell had sold the horse, and he was taken from the possession of their vendee by the military authorities, then they should find for Boyd; which the court refused.
¶7To authorize a finding in favor of Day & Gorrell on the general warranty of title, it must appear that they, or their vendee, had been evicted ^by a superior title, and that Day & Gorrell had refunded the money because of their warranty to their vendee.
¶8. To authorize a finding in their favor on the special guaranty, it must appear that they had made a special guaranty to their vendee, and, because thereof, they had refunded the money.
¶9Neither a paramount title in the United States government or its military officer, nor a special guaranty by ' *619Day & Gorrell to their vendee, was shown in this case; hence the instruction, as the evidence stood, should have been given. ♦
¶10Wherefore, the judgment is reversed, with instructions for a new trial and further proceedings consistent herewith.