will. The will devised a life estate only in the lands to E. A. Long, Sr. Dempsey v. Davis, 98 Ark. 570.

It is alleged that appellee represented to appellant that he owned a fee simple title to said real estate, and his covenant of warranty clearly indicates that he was attempting to convey a fee simple estate in the lands to appellant. It is apparent that this representation was made through a mistake of either or both appellee and appellant. A life estate only having passed from appellee to appellant under the will and by the deed, it is apparent that appellant is deprived of the fruits of his purchase, or, in the language of another, "the substance of the thing he bought." This court discussed the character of mistakes in matters of law and fact against which courts of equity would relieve, in the case of Fitzhugh v. Davis, Admx., 46 Ark. 337. Many authorities were reviewed in that case, and the court said: "The rule is, To entitle a vendee of land, who has gone into possession under a deed with general covenants of warranty, to rescind on the ground of failure of title, the loss must be of such character as that he is thereby deprived substantially of the benefits of his purchase, but if the beneficial enjoyment of his contract be not materially taken away, and there is only a partial failure of consideration which can be compensated in damages, there is no cause for rescission."

The same principle was recognized in the well considered case of Reggio v. Warren et al., 20 Am. & Eng. Ann. Cas. 1244, and 207 Mass. 525. In that case, it was said by Mr. Justice Sheldon: "But it is now well settled that this rule is not invariably to be applied. In some cases where great injustice would be done by its enforcement, this has been avoided by declaring that a mistake as to the title to property or as to the existence of certain particular rights, though caused by an erroneous idea as to the legal effect of a deed or as to the duties or obligations created by an agreement, was really a mistake of fact and not strictly one of law, and so did not constitute an insuperable bar to relief. Again, the learned Justice said: "In other cases, sometimes as a ground of decision and sometimes merely in discussion or argument, it has been said that there is no established rule forbidding the giving of relief to one injured by reason of a mistake of law, but that whenever it is clearly shown that parties in their dealings with each other have acted under a common mistake of law and the party in. jured thereby can be relieved without doing injustice to others, equity will afford him redress." The rule laid down in Reggio v. Warren, supra, is supported by the great weight of authority.

Since the will in question vested a life estate only in appellant, the two lots for which he paid $1,700 are rendered almost valueless. It would be next to impossible to ascertain his damages. In fact, a suit will not lie for damages on the covenant of warranty until eviction, and there can be no eviction until after the death of appellee. Thompson v. Brazile, 65 Ark. 495.

He has no remedy at law unless it be a remote, uncertain remedy. His title is clouded by a reversionary in. terest and rendered of little or no value and almost unsalable.

The case comes clearly within the equitable doctrine of rescission laid down in the cases referred to in this opinion.

The decree is reversed with instructions to overrule the demurrer and reinstate the bill.

1.

SCHNEIDER V. FAIRMON.

Opinion delivered April 9, 1917.

COURTS-JURISDICTIONAL AMOUNTS MUNICIPAL COURT-SERIES OF NOTES. Appellant sold an automobile to appellees for $450; $100 was paid in cash, and appellees executed to appellant a series of seven notes for $50 each. None of the notes were paid. Held, jurisdiction in an action on the notes was in the municipal court.

2.

3.

4.

COURTS-PLEA OF COUNTER-CLAIM-JURISDICTIONAL AMOUNT. In an action on several promissory notes, defendant interposed a counter claim. Held, under the evidence that the latter was within the jurisdiction of the municipal court.

CONTRACTS-WARRANTY-COUNTER-CLAIM.- Where an action is brought for breach of warranties in a contract, an affirmation of the contract is implied with a prima facie liability for the contract price, less the damages sustained in consequence of the breach of warranty.

COUNTER-CLAIM AMOUNT OF ACTION ON NOTES. - In an action on certain notes given for the purchase of an automobile, the defendant plead a counter-claim in a certain sum, in instructing the jury, the court should limit the amount to be recovered by the defendant on his counter-claim, to the amount pleaded by him.

5.

CONTRACTS-SALE OF CHATTEL-PROOF OF WARRANTY. - Where a contract for the sale of a chattel is not reduced to writing, a warranty on the part of the seller may be shown by parol.

6.

7.

SALES-EXPRESS WARRANTY CAVEAT EMPTOR. - The rule of caveat emptor is not applicable to sales of articles under express warranty. EVIDENCE-OPINION OF WITNESS.-Testimony that A. and B. were in the witness's opinion partners, is inadmissible.

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks, Judge; reversed.

Gardner K. Oliphint, for appellant.

1. There was no warranty of the case, but if there was it became merged in the notes and defendants are estopped. 38 Ark. 334, 346; Benjamin on Sales, § 261; 45 Ark. 284, 289. The doctrine of caveat emptor applies. 7 Ark. 167, 171.

2. The municipal court had jurisdiction. 45 Ark. 346; 24 Id. 177; 27 Id. 508; 1 Id. 55; 29 Id. 173, 181; 122 Id. 227; 113 Id. 126; 123 Id. 40. The question of jurisdiction can not be raised here for the first time. Each note was a separate demand and determined the jurisdiction. 108 Ark. 540; 119 Id. 263; 111 Id. 350; 103 Id. 142; 38 Ark. 334.

3. The contract was executed and no breach of warranty, if any, was shown, nor any fraud or concealment of defects. Both parties examined the machine, and it was thoroughly overhauled by an expert machinist. 93 Ark. 454, 457; 27 L. R. A. (N. S.) 915; 2 Mechem on Sales, §816; Tiedeman on Sales, § 197; 24 Am. & E. Enc. Law, 1109; 27 L. R. A. (N. S.) 925, 932.

4. The court erred in its instructions as to damages and as to the rescission of the contract. 27 L. R. A. (N. S.) 925; 34 S. W. 299; 81 Wis. 399; 51 N. W. 572; 100 Ark. 17; 110 U. S. 108; 23 Ark. 734; 95 Id. 488; 88 Ark. 26; 46 Id. 148.

5. No fraud is shown. 47 Ark. 148; 99 Id. 438; 101 ld. 95; 77 Id. 56; 51 Id. 1; 78 Id. 87; 75 Id. 266; 100 Id. 565. Where the means of information are equally accessible to both parties, they will be presumed to have informed themselves, and if not they must abide the consequences. 95 Ark. 131, 136; 95 Id. 523, 527. Defendants knew the condition of the car after personal inspection. They had no right to rely on the statements of any one. 95 Ark. 131, 523; 100 U. S. 108; 38 Ark. 334.

6. Smith was not plaintiff's agent. Defendants were required to ascertain the extent of his authority at their peril. 105 Ark. 113; 119 Id. 51.

7. Plaintiff was entitled to judgment for the amount of the notes, $350, but if not, to the difference between $350 and the amount expended in making necessary repairs. A "straight out" verdict for defendants was not justified by the law or evidence. 107 Ark. 476.

8. It was error to admit that part of Fairmon's deposition as to his impressions. 111 Ark. 134.

9. The trial court violated article 7, section 23, of the Constitution. 51 Ark. 147; 73 Id. 568; 123 Id. 446. All objections and exceptions were properly reserved. 52 Ark. Law Rep. 570.

Will G. Akers, for appellees.

1. The verdict is supported by the evidence. Smith was appellant's agent and warranted the car. The verdict is right.

2. Parol evidence was admissible--the whole contract was not in writing. Joyce on Comm. Paper, 326; 2 Paige on Cont., 1850-4, § 1203; Kirby & Castle's Digest, §6968.

3. The rule of caveat emptor does not apply here. 38 Ark. 334.

4. The court had jurisdiction of the suit and the counter-claim. 1 Ark. 252; 85 Id. 213; 111 Id. 350; 85 Id. 213; 83 Id. 372; 78 Id. 595; 111 Id. 350; 95 Id. 43.

5. There is no error in the instructions. 38 Ark. 338, 342.

6. The objections to the deposition of Fairmon are not tenable. Kirby & Castle's Digest,§§ 3503-8.

HUMPHREYS, J. Appellant brought suit in the municipal court of the city of Argenta against appellees on seven promissory notes for $50 each, or a total sum of $350 and interest. Appellees answered in substance to the effect that the notes were executed for a balance due on an automobile sold by appellant to appellees; that appellant, through his agent, W. T. Smith, represented and guaranteed that the automobile was, or would be, put in first-class running condition; that neither before nor at the time of the delivery did appellant put the car in running condition; that immediately upon discovering the defective condition of the automobile, appellees offered to rescind the contract and return the car, and demanded a return of their notes; that appellant refused to rescind; that thereafter appellees were compelled to expend $225 to put the car in such order as would enable them to make use of it.

Appellees prayed that appellant take nothing by their action and that they have judgment against him for the sum of $225.

Appellant recovered a judgment of $365, from which an appeal was taken to the circuit court, and there the cause was tried and judgment rendered in favor of appellees, from which an appeal has been prosecuted to this court.