Upon the facts reported by the commissioner, the truth of the exceptions as originally presented is substantially and fully established. The exceptions state that the evidence tended to show that the horse was bought and taken by McFarland under “ the same condition ” as the oxen — not under similar conditions only. The evidence as to the conduct of the defendant having been offered and admitted upon the question of waiver of the condition, the omission of the exceptions to state that it was also admitted upon the question whether there was any condition — as to which he took no exception — was immaterial.

There being evidence that the horse and oxen had been sold by the defendant to McFarland at one time and under the same condition, the evidence offered by the plaintiff, tending to show that the defendant had waived the condition so far as the horse was concerned, was competent to show that he had waived the whole condition. But the evidence, offered by the defendant to show that, upon this same issue and upon the same facts, he had obtained a- verdict and judgment against the plaintiff in a former action concerning the title to the horse, should have been admitted, and its rejection requires the

Exceptions to lb sustained.