Opinion of the Court by

If the auctioneer, who sold, the colt for which the note sued on was given, warranted the soundness of the colt, his act was that of the appellee for whom the sale was made to one of the appellants, and, if the auctioneer’s affirmation that the colt was sound did not imply a warranty, it may have been constructively fraudulent; for, to affirm positively as a fact that which is false, whether known to be so or not, is, in law, a fraud.

The facts established on the trial conclusively proved that the colt was unsound when sold, and died of that unsoundness about a week after the day of sale. It was therefore of no value. And consequently, even if there had been neither warranty nor fraud, the total failure of consideration, often adjudged by this court exonerated the purchaser from legal liability for the price or any portion of it. The instruction to the jury, essentially inconsistent with the principles, was therefore erroneous. Consequently, both on the law and the evidence, the circuit court ought, on the motion of the appellants, to have set aside the verdict against them and awarded a new trial, and erred in overruling their motion.

Wherefore the judgment is reversed and the. cause remanded for a new trial.