The opinion of the court was delivered by

The real character of the transaction is, that the plaintiff sold the defendant a mare at a stipulated price, which price was to be enhanced to a larger sum, provided the mare proved to possess a certain quality, which it was then impracticable to determine whether she possessed, or not. If the mare at the time of the sale had been lame from a recent injury, the extent of which could *144not then be ascertained, and it had been agreed, that the purchaser should pay for her a certain price, and an increased price, provided she should recover from her lameness within a specified time, and the mare had been charged on book, I apprehend there could be no doubt, the seller could recover her value in this form of action, at either the higher or lower price, as the evidence should warrant. So, if the mare in the present case had been sold on credit and charged on book, we see no objection to the plaintiff’s recovering her value in the book action, and at the enhanced price, if the facts in the case showed him entitled to it. Nor do we think, it would form any obstacle to the recovery on book, that by the agreement the price of the mare, or a portion of it, was to have been paid to a third person, instead of directly to the seller. Sales are not unfrequent, in which the purchase money is agreed to be paid to a third person in discharge of a liability of the vendor to him, but it has not been supposed, that we are aware, that such agreement in regard to the mode of payment would prevent the vendor from charging and recovering for the article on book.

The present is substantially an action to recover of the defendant a balance due to the plaintiff on the sale of a mare; and such in effect was the form, in which it was presented to the auditor. We perceive no valid objection to the form of the action for the recovery of this balance, and therefore affirm the judgment of the county court.