Edwards

Defendant and two others purchased from plaintiff a jack for the agreed price of which each of them executed his note to plaintiff in the sum of $433.33. The action is against defendant to recover upon the note so made by him to plaintiff. The answer admits' the making of the note and nonpayment thereof, and as a separate defense sets up a contract alleged to have been made at the same time and as a part of the same transaction in which the note was signed and delivered, which contract, is as follows:

It is further alleged that on February 15, 1906, possession of the jack was delivered to said defendants and his associates; that it was properly cared for and used in the service of mares during the entire breeding season and up to December 15, 1906, on which date, without fault of defendant or either of the other parties having said jack in charge, it died, of which fact plaintiff had notice but failed to surrender to defendant his note; “that said jack during said time from February 15, 1906, to December 15, 1906, failed to get sixty per cent of the stock served with foal, and did not get more than thirty-eight per cent with foal.”

An order of the court overruling a general…