conflict, it may safely be put down that the findings of the court are sufficiently supported.

But as to the finding that the defendants "have received no consideration for their said promissory note," or as to any implied finding, if any there be, that there was a failure of such consideration, we are of a different mind. By the contract the parties fixed their own remedy in case of a breach, and it is the exclusive remedy. They had the right to do this, and, having bound themselves to the remedy so fixed, their rights must be measured thereby.

The sale of the horse to the defendants obviously constituted the consideration for the note in suit, and, of course, a sufficient consideration so long as the animal remained true to the foal-getting test prescribed by the warranty; and there could be a failure of consideration only in case the stallion failed to come up to the percentage for foal-getting provided by the warranty and the refusal or failure of the vendors to replace the stallion with another of the same breed and value. As seen, the stallion did not produce the percentage of foals guaranteed by the vendors, and, this being true, the obligation rested upon the latter, not to cancel and surrender up the note, but to replace said stallion with one answering the stipulations of the guaranty in that regard. But, under the contract of guaranty, before the vendors could be compelled to do this, the obligation rested upon the defendants to return the stallion in as sound condition as when delivered to them to the possession of the McLaughlin Brothers, or, which amounts to the same thing, to a place designated by them in the contract. This stipulation or covenant of the contract of guaranty constituted a condition precedent, the performance of which by the defendants was requisite to entitle them to the substitution and delivery to them of another stallion for the one which had been sold and delivered to them by the plaintiff, unless said condition had been waived by the vendors.

The rule generally applicable to contracts of the sort under present consideration is well stated by the Kansas supreme court, in the case of Hickman v. Richardson, 92 Kan. 716, [142 Pac. 964, 966], as follows: "It was competent for the parties to agree how the purchaser should take advantage of any breach of warranty and what the rights of the parties should be in case the horse proved unsatisfactory. It seems to

be well settled that such an agreement on the part of the purchaser is binding, and that he cannot ignore the part of the contract which obligates him to return the property if it prove unsatisfactory after the stipulated test. (Birch v. Kavanaugh Knitting Co., 165 N. Y. 617, [59 N. E. 1119]; Nichols-Shepard Co. v. Rhoadman, 112 Mo. App. 299, [87 S. W. 62].) Cases will be found where the purchaser is given the privilege of returning the property within a certain time if it prove unsatisfactory, but where he makes no agreement that he will pursue that remedy. In such cases it is held that the privilege to return the property is but a cumulative remedy. (Am. Dig., Dec. ed., tit. Sales, sec. 426, and cases cited.) In the present case the warranty was in respect to a matter the absolute truth of which it might not have been possible for the seller to know, and the contract seems to have been made upon the theory that only subsequent developments would determine absolutely whether or not the horse would be satisfactory, so the agreement gave certain rights to both seller and purchaser; and the seller had the right to insist upon the provision requiring the horse to be returned within a specified time and another horse taken in its place.

By failing to return the horse in accordance with the provisions of the contract, the defendants are precluded from relying upon the breach of warranty of the breeding qualities of the horse.”

Again, in Crouch & Son v. Leake, 108 Ark. 322, [50 L. R. A. (N. S.) 774, 157 S. W. 390], where a contract of warranty precisely similar to the one before us was under consideration, it said: "The written contract expressed the terms of the warranty, and provided the remedy that should accrue from a breach of it, which was exclusive of any other mode of compensation, and afforded the only relief to which they were entitled. Not having complied with the said condition on their part, nor shown a waiver thereof on the part of appellants, they will be held to have accepted the stallion as in all respects complying with the warranty, and bound to the payment of the balance due on the note for the purchase money." (Highsmith v. Hammonds, 99 Ark. 400, [138 S. W. 635], and other cases. See, also, Brown v. Russell & Co., 105 Ind. 46, 52, [4 N. E. 428, 431]; Bomberger, Wright & Co. v. Griener, 18 Iowa, 477, 480; Oltmanns Bros. v. Poland (Tex.

Civ. App.), 142 S. W. 653; Holbert v. Sanzenbacher (Tex. Civ. App.), 159 S. W. 1054; Beckett v. Gridley, 67 Minn. 37, [69 N. W. 622]; cases cited in footnotes under Crouch & Son v. Leake, 50 L. R. A. (N. S.) 774, et seq.)

We now come to an examination of the evidence. But it may first be well to observe that there is no evidence showing or tending to show that the McLaughlin Brothers waived. the condition imposed by the guaranty upon the defendants that they would, if the stallion Gluton failed to measure up to the terms of said contract as a foal-getter, return the animal to the said vendors. The McLaughlin Brothers, however, did modify the guaranty to the extent of giving the defendants the privilege of delivering the horse to them at Emeryville, California, instead of making the delivery at one of the several places in the East mentioned in the agreement. But this modification did not, obviously, involve a waiver by the vendors of the condition or obligation imposed by the warranty upon the defendants.

The defendant Landon, who appears to have been the most active of the several parties to the agreement (the defendants) in an effort to secure from the McLaughlins another stallion in the place of the one sold and delivered to them, testified that, after it was discovered that the stallion Gluton was incapable of making the percentage of foals guaranteed by McLaughlin Brothers, he, in the month of May, 1912, addressed a letter to the McLaughlins apprising them of the fact that the horse, for breeding purposes, had failed to meet the terms of the guaranty, and asking them to replace the animal with another stallion, as agreed. The witness admitted, however, that neither he nor any of the other defendants ever at any time offered to ship the stallion to the stables of McLaughlin Brothers at Kansas City, Missouri, or at St. Paul, Minnesota, or at Columbus, Ohio; but he stated that McLaughlin Brothers, in reply to the letter written to them by the witness in May, 1912, above referred to, ordered the shipment of the horse to Emeryville, California, where, so the McLaughlins stated, they had a stallion which they would deliver to the defendants in the place of the stallion Gluton. The defendants did not ship the stallion to Emeryville, nor did they (so Landon testified) notify the McLaughlins that they "held the stallion subject to their order. . . . I told

them I wanted a change," continued Landon. "Q. Did you ship the stallion to them at Emeryville? A. I did not. I wrote to them for a description of the horse that they had there, and I never could get a letter from them afterward. Q. After that you never received any further communications? A. No. Q. Did you afterward write to them, asking them for a change? A. I did." The witness proceeded to say, as all the defendants that testified at the trial declared their willingness to do, that he "would be willing to give up the stallion if the four promissory notes that were given for the stallion were surrendered and canceled."

So far as anything to the contrary appears in this record, the stallion is still in the possession of the defendants. In fact, as above shown, the answer so declares.

Thus it is plainly manifest that the defendants not only wholly failed to discharge the obligation or condition to which they subscribed and bound themselves, but that they purposely refused to perform the condition. They probably stood upon the theory that the failure of the stallion to measure up as a foal-getter to the guaranteed percentage afforded ground for a rescission of the contract of sale. But, as we have above shown, this is an erroneous theory. The case here, stated in its simplest form, is: The contract constituted a completed sale, to which, however, were annexed conditions involving the reciprocal rights of the parties, to wit: As to the vendees, that the property sold should as to quality measure up to a specified standard, and in case it did not, that they would then be entitled, not to a rescission of the contract of sale, but to have it replaced by the vendors with property of like kind and value which would meet the terms of the warranty. As to the vendors, that, if the property did not meet the test prescribed by the warranty, the same should be returned to them by the vendees in as good condition as when delivered before other property of like kind and value should be delivered to the latter. A failure on the part of the vendees to return the property as agreed would constitute the breach of the agreement by them, and so absolve the vendors from the obligation of replacing the same with other property of like kind and value. A failure of the vendors to replace the property as stipulated, after the return of the same to them in as good condition as when delivered, would constitute the breach of the agreement by them, and in that

case only would the vendees be clothed with the right to a rescission and a return of the consideration moving from them to the vendors. But, to repeat, until such breach on the part of the vendors has occurred, after the defendants have pursued the exclusive remedy to which by their agreement they had committed themselves, the vendees would have no right of action at all against the former. So, the vendees, having themselves first violated the agreement, or failed or refused to comply with the condition the performance of which was essential to support their right to be provided by the vendors with other property in the place of that originally sold to them, are obviously in no position to claim a rescission. or to invoke the defense of no consideration or of failure of consideration for the purchase price in an action upon a promissory note made and delivered by them in consideration of the purchase price of the property sold. Of course, if, after a reasonable trial and the vendees have pursued the remedy fixed in their agreement, the vendors find themselves unable to furnish the vendees with a stallion whose procreative power is such as to enable him to produce the guaranteed percentage of foals, or substantially such percentage, then the vendees would be entitled to rescind the contract of sale and to the return of money paid thereon, or the surrender or cancellation of any promissory note or notes delivered to the vendors by them for the purchase price of the stallion.

Counsel for the defendants have undertaken to point out a distinction between this case and the cases cited by the plaintiff and above referred to; but we can perceive no substantial distinction. It is true that some of the cases mentioned above use language which would indicate that a mere offer to return the property without actually returning it would fulfill the requirements of the rule applicable to cases of this character. It is by no means inconceivable that cases may arise (if some have not arisen) where, under a contract of sale, with warranty as to quality, that a mere offer to return the property sold would be sufficient to entitle the vendee to be provided by the vendors with other property in the place of that sold, the latter not having come up to the terms of the warranty. The proposition depends upon the wording of the contract, and, perhaps, to some extent upon the nature of the property sold. The agreement here, how