Page images
PDF
EPUB

1817.

SITTINGS AT WESTMINSTER, AFTER MICHAELMAS
TERM, 58 GEORGE III. 1817.

Crib-biting is no such unsoundness in a horse, as to

chaser, who has bought under a general warranty, to maintain an action for the breach of it, upon this fault only.

A

BROENNENBURGH V. HAYCOCK.

CTION upon the warranty of a horse, which had been sold for ninety guineas.

The

entitle a pur- question was, whether crib-biting, which was the vice in question, was such a species of unsoundness as to sustain the action. The horse had been warranted sound generally. Some eminent veterinary surgeons were called as witnesses, who stated, that the habit of crib-biting originated in indigestion; that a horse, by this habit, wasted the saliva which was necessary to digest his food, and that the consequence was a gradual emaciation. But they said that they did not consider crib-biting to be an unsoundness, but that it might lead to unsoundness. That it was sometimes an indication of an incipient disease, and sometimes produced unsoundness, where it existed in any great degree.

Best and Vaughan, serjeants, for the defendant. This was no breach of warranty. The defendant had given no undertaking against the particular vice which was the subject of complaint. As well might it be said that kicking was an unsoundness,

.

because a horse might, by kicking, accidentally 1817. break a leg.

BROENNEN

BURGH v.

Lens, serjeant, contrà, The habit of crib-biting detracts from the value of a horse; and whatever HAYCOCK. renders a horse unfit for service, and incapacitates him for general use, is unsoundness. If it must necessarily terminate in unsoundness, it is the same thing as if the horse were actually unsound. Besides, unsoundness was a question of fact, not of law.

BURROUGH, J.-It is, perhaps, compounded of both. If it be law, I am of opinion that, in this particular case, it is not unsoundness. And I am satisfied the Jury will think with me on the fact. It is a curable vice in its first stages, and this horse was only proved to be an incipient cribbiter. It is a mere accident arising from bad management in the training of a horse, and is no more connected with unsoundness than starting and shying. The plaintiff might have demanded a warranty against this particular vice; but I am quite clear that it is not included in a general warranty.

Nonsuit.

Lens, serjeant, and Gaselee, for plaintiff.

Best and Vaughan, serjeants, for defendant.

Actions are so frequently brought upon a breach of warranty on the sale of horses,

that it may be useful to col-
lect the cases within the com-
pass of a short note.

1817.

BURGH.

V.

Horses being subject to secret maladies, it is usual with

BROENNEN- the buyer to require a warranty of soundness upon their HAYCOCK. sale. For if a horse, having a secret malady, be sold without a warranty of soundness, the purchaser has no remedy. If, indeed, a fraud have been practised at the time of sale, the buyer may have an action on the case for the deceit. But unless in the case of fraud, the maxim of the English law, contrary to that which obtains in the civil law, is caveat emptor. An express warranty extends to latent defects. But if there be no such warranty, and the seller sell the horse, such as he believes it to be, without fraud, the law will not imply that he sold it upon any other terms than such as were stipulated at the time of the bargain. It is the fault of the buyer, if he do not insist upon a warranty. It has been said, that there is an implied warranty of the goodness of an article arising from the conditions of all sales; and this has been rested upon the principles of natural justice and equity, which must govern all the contracts of men without reference to the particular quality of the thing for which they contract. There is no such principle, however,

in the English law. Parkin son v. Lee, 2 East. 314. It was formerly, indeed, a current opinion, that a sound price was per se an implication of warranty. In other words, that a sound price given for a horse was tantamount to a warranty of soundness. But, when this notion came to be judicially examined, it was found to be so loose and unsatisfactory, and so much at variance with the principles of the English law in contracts of buying and selling, that Lord Mansfield, (in Stuart v. Wilkins, 1 Dougl. 18.) rejected it as a popular error; and said, that there must either be an express warranty of soundness, or fraud in the seller, in order to maintain the action. See likewise, 1 Roll. Abr. 90. P. and the judgment of Mr. Justice Lawrence, in Parkinson v. Lee, supra.

The advantage arising to the buyer from an express warranty of soundness is this, that such warranty extends to every kind of soundness, known and unknown to the seller; and if the warranty be false, the buyer has a remedy against the seller, to recover a compensation in damages. But as soon as the unsoundness is discovered, the buyer should immediately tender the horse to the

seller, for otherwise he will not be entitled to recover for the keep. Caswell v. Coare, 1 Taunton, 567.

A person sells a horse as of the age stated in a written pedigree, declaring that he knows nothing of the horse but that he has learnt from the pedigree. This is not a warranty. Dunlop v. Waugh, Peake, 123, Kenyon, C. J. 1792.

Where a horse has been sold, warranted sound, which it can be clearly proved was unsound at the time of the sale, the seller is liable to an action on the warranty, without either the horse being returned, or notice given of the unsoundness. Fielder v. Starkin, 1 H. B. 17.

In Curtis v. Hannay, 3 Esp. 83. Lord Eldon says, " I take it to be clear law, that if a person purchases a horse that is warranted, and it afterwards turns out that the horse was unsound at the time of warranty, the buyer may, if he pleases, keep the horse, and bring an action on the warranty, in which he will have a right to recover the difference between the value of a sound horse, and one with such defects as existed at the time of the warranty; or he may return the horse, and bring an action to recover the full moYOL. I.

1817.

BURGH

v.

ney paid. But in the latter
case, the seller has a right to
expect that the horse shall be BROENNEN
returned to him in the same
state as when he was sold it; and
not by any means diminished
in value." A warranted arti-
cle must be returned imme-
diately; or in a reasonable time
after the defect is discovered.

But where on the sale of a
horse there is an express war-
ranty by the seller, that the
horse is sound, free from vice,
&c. coupled with an under
taking on the part of the seller
to take the horse again, and
pay back the money, if on trial
he shall be found to have any
of the defects mentioned in the
warranty, the buyer must in
such case return the horse as
soon as he discovers any of
those defects, in order to main-
tain an action on the war-
ranty, unless he has been in-
duced to prolong the trial by
any subsequent misrepresenta-
tion of the seller. Adams v.
Richards, 2 H. B. 573. In
such case, trial means a rea-
sonable trial, 2 H. B. 573.

Upon the warranty of a horse as sound, the vendor, int a subsequent conversation, promised, if the horse were unsound (which he denied), that he would take it again, and return the money: though the horse be unsound, the vendes 2 T

НАУСОСКА

[merged small][merged small][merged small][ocr errors][merged small]

If a horse sold at a public auction be warranted sound, and six years old, and it be one of the conditions of sale that it shall be deemed sound unless returned in two days; this condition applies only to the warranty of soundness. Buchanan v. Parnshaw, 2 T. R. 745. Therefore, where a horse, sold with such a warranty, was discovered to be twelve years old ten days after the sale, and was then offered to the seller, who refused to take him, it was holden that an action might be maintained by the buyer against the seller, on the warranty; and his right to recover is not affected by his having sold the horse after offering him to the defendant, 2 T. R. 745. In an action on a warranty of a horse, the affirmative is, however, upon the plaintiff; he must positively prove that the horse was unsound. Eaves v. Dixon, 2 Taunt. 343. And see Lewis v. Cosgrave, 2 Taunt. 2. In the latter case, where the plaintiff sold the defendant a horse, with a warranty of soundness, and the defendant

gave the plaintiff a bill of exchange for the price; the defendant discovering the horse to be unsound, tendered him to the plaintiff, who refused to take him back again, and brought an action against the defendant on the bill, it was holden, (upon the defendant's proving that the plaintiff, at the time of the sale, knew that the horse was unsound) that he could not recover upon the bill, for it was clearly a fraud; and a person cannot recover the price of goods sold under a fraud.

Upon the breach of the warranty of a horse, if the horse is returned, the measure of damages is the price paid for him; if the horse is not returned, the measure of damages is the difference between his real value and the price given; if the horse is not tendered to the defendant, the plaintiff can recover no damages for the expence of his keep. Caswell v. Coare, 1 Taunt. 566, cited supra, and Curtis v. Hannay, 3 Esp. 83.

A horse labouring under a temporary lameness, occasioned by accident, and capable of being speedily removed, is not unsound. Therefore, an averment in a declaration of a ge neral warranty of soundness is supported by evidence of a

« PreviousContinue »