Merguire

This is an action to recover damages for deceit and fraudulent representations in the sale by defendant to plaintiff of three horses. Plaintiff had judgment for $650, from which judgment, and from an order denying a motion for a new trial, defendant appeals.

About the 1st of June, 1890, plaintiff purchased from the defendant, at East Oakland, three horses for $400, paying $100 down and the residue to be paid the following day upon delivery of the horses in San Francisco. Defendant called upon plaintiff the following morning, in advance of the arrival of the horses, and received the residue of the purchase price. Almost immediately upon the arrival of the horses, and within an hour, they were found to be ailing and discharging from the nose. The disease with which they were *51 afflicted proved to be glanders. One of them was con- ' demned by the public authorities, and killed in a short time, and the others shared the same fate a few months later.

Plaintiff, after the death of the first horse, offered to return the others, and demanded a rescission of the contract and return of his money, which was refused by the defendant.

The complaint charged defendant with falsely and…