Opinion oe the Court by

If it were not tbe duty of appellee to disclose to tbe appellant tbe true condition of tbe horse which be exchanged with him for tbe mare, knowing, as be did ,that be was unsound, and of no value, be is without legal excuse for affirming, when appellant asked him if be was a good plow horse, that be was. He was weak in tbe back, or loins as tbe evidence shows, and could not be used, as a plow horse, nor for any other service, on that account. For tbe misrepresentation, and fraud therefore of appellee, appellant was entitled to a rescission of tbe contract, having tendered tbe horse and money back so soon as be discovered tbe fraud. Consequently tbe instruction which was given on motion of appellee, was erroneous. And tbe one asked by appellant should have been given.

Wherefore, tbe judgment is reversed, and tbe cause remanded with directions to set aside tbe verdict, and award a new trial, and for further proceedings not inconsistent with tbis opinion.