1. There was evidence from which the jury could infer that the defect in the horse warranted as sound by the agent of the seller existed at- the time the warranty was made.

2. The charge of the court expressly limited the jury to the consideration of whether or not there was a breach of warranty “as contended for the plaintiff;” and under this instruction, when considered in connection with the pleadings, the jury were not authorized to And against the defendants for defects not existing at the time the Warranty was made.

3. There is nothing in the evidence to indicate that at the time the second note was executed by the purchaser (about five days after the first note had been given, and in lieu thereof), he had discovered that the horse was diseased or worthless; and hence the giving of the second note did not amount to a waiver of the defect complained of.

4. There being no sufficient legal foundation for the introduction of sec*799ondary evidence as to the contents of the original written contract of purchase, the court did not err in declining to admit the proffered testimony.

5. There was no error in overruling the motion for a new trial.

Judgment affirmed..