Appellee, Mose Brown, sued the appellants, E. O. Barnett Bros., to recover the sum of $125, the purchase price of a horse bought by him from them, with interest from June 17,1918, the date upon which the horse was taken from appellee’s possession, alleging a breach of the warranty of title.
This cause was heard in the court below on an agreed statement of facts and in the judgment of the court there was incorporated a. summary of these facts with accompanying declarations of law applicable thereto. From that judgment we copy the findings which there appear:
*638‘‘The court makes the following findings herein:
“First. That at the time of the sale of the mare by defendants to the plaintiff here the defendants, E. O. Barnett Bros., had no title to the mare.
“Second. That at the time of the sale the plaintiff, Mose Brown, did not know of any litigation about the mare.
“Third. That at the time of the payments to the defendants by the plaintiff here for the'mare the plaintiff, Mose Brown, was relying on the advice and instructions of his' attorney, Oscar Barnett, of the firm sued here, that the title to the mare was in the defendants, Barnett Bros.
“Fourth. That at the time of the payments as above the plaintiff, Mose Brown, did not know, and could not know, that the title would be adjudged to be in Joe Porter, for the reason that the payments were made in October and November, 1917, and that the Supreme Court did not finally adjudicate the case until May 6, 1918.
“Fifth. That there was a breach of warranty in the sale of the mare by the defendants to the plaintiff.”
These findings — which the agreed statement of facts appears to warrant — leaves but little for us to decide.
There was an implied warranty of the title; and that title failed.
Appellants say, however, that the horse had a usable value to appellee, which should have been assessed and credited upon the purchase price, and that this is especially true inasmuch as the usable value of the horse was assessed by the court and jury in litigation between appellants and Porter. But appellee here was not a party to that litigation, and his rights were not affected by it. It is true that appellee had the use of the mare from the time he purchased her until she was taken away from him at the conclusion of the Barnett and Porter litigation, and that this use had a money value, and that the court below refused to assess it and credit on the purchase price. But no error was committed in that respect. *639In 35 Cye. at p. 612» in the article on Sales, the law is announced as follows: “Where the goods have been delivered to and used by the buyer, who subsequently rescinds the sale and sues to recover the purchase price, it has been held that there should be no allowance to defendant for the value of such use or to plaintiff for the interest on his money, but that the one should offset the other.”
The reason for the rule stated which is given in the cases cited in the note to the text is that the seller cannot, through the failure of the title, which he has impliedly warranted, change the attitude of the purchaser to that of a mere hirer.
It is also asserted that the payments of purchase money were voluntarily made and cannot, therefore, be recovered. But they were made, not only under an implied warranty of title, but under the assurance of a title which the Barnetts were vigorously asserting in litigation which they finally prosecuted to this court. These payments were made before the final termination of the litigation between the Barnetts and Porter and before the mare had been taken from appellee’s possession and at a time when, according to the finding of the court below, appellee was relying upon the assurance of one of the appellants that the title was good notwithstanding the litigation. .
The court below rendered judgment for the puchase price of the horse, with interest thereon, from the day she was taken out of appellee’s possession, which judgment was correct and is, therefore, affirmed.