—

Warranty on Sale of Animals.

Part V.

389

ammal, and the rule caveat emptor applies it and certainly advisable, for the buyer to protect himself by requiring an express warranty with the animal of any of the quality of the

is,

therefore, usual,

quality or virtue he

may

p^kt V. Warranty on Sale of Animals.

require.

846. A warranty is not intended to guard against defects which are Patent obvious to the senses {g). It has been said that if a man guarantees defects, that a horse has two eyes he is not liable if it has not, for the buyer could have an examination before he bought (/i) but it is otherwise if the eye have some defect which is congenital, or which could not be ascertained by an ordinary man {i). It is a question of fact what is and what is not a patent defect. A splint " may or may not cause lameness, and a warranty of soundness will be taken as meaning that a splint which was plainly visible and pointed out to the buyer was not at that time such a splint as would cause future lameness, and the warranty is broken if lameness arises from that splint (j). If the buyer is not present at the time of the treaty for sale, then the warranty will cover patent defects (/c), or if the seller warrants the horse with the intention of preventing the buyer examining it and so discovering a patent defect, or uses any other artifice to conceal such a defect, then also the warranty will cover it ®.

847. By a warranty the seller undertakes absolutely that the EfEect of horse possesses the virtues attributed to it in the warranty, and is warranty, at the time of the sale free from the defects warranted against, whether they are known to him or not {in). Special words may, however, limit the warranty to defects within the seller's knowledge {n). It is not uncommon to insert the warranty given in the receipt What will for the price and such insertion does not make the receipt liable amount to

stamp duty as an agreement (o). No particular form of words is necessary to constitute a warranty (^). Any statement of fact made at the time of the sale, and before it is completed, and intended to be a warranty is a warranty in law (g). The question of to

the intention of the statement

•

2

Edw.

{())

Compare Y. B.

(h)

Ibid. per Brian", J.

11

one of fact for the jury, as also

is

4, fol. 6 B.,

per Eaiefax, J.

,

(i) Holyday v. Morgan EoU. Eep. 5.

(1858), 28 L. J. (q. b.) 9; Soutlierne v. Hoiue (1617),

v. WrujM (1831), 7 Bing. 603, and, on rehearing (1832), 8 Bing. Smith v. 0' Bryan (1864), 11 L. T. 346. {Jc) Y. B. 13 Hen. 4, fol. 1 B., per Thirning, J. Kennerv. Harding (1877), (/) Dorrhigton v. Edwards (1620), 2 Roll. Eep. 188 85 III. (U. S.) 264, also reported in 28 Amer. Eep. 615. Williamson v. Allison Cm) Compare Stuart v. Wilkins (1778), 1 Dougl. 19

[j]

454

Margetson

(1802), 2 East, 446. {n) Wood V. Smith (1829), 5 Man. & E. (k. b.) 124. Compare Diinlop v. Waugh (1792), 1 Peake, 167; Finder v. Button (1862), 7 L. T. 269. (o) Shrine v. Elmore (1810), 2 Camp. 407. As to what is a note or memoran-

dum within s. 4 of the Sale of Goods Act, 1893 (56 & 57 Yict. c. 71) applicable to a sale of a horse by auction, see Peirce v. Corf (1874), L. E. 9 Q. B. 210 Bainhow v. Howkins, [1904] 2 K. B. 322 and title Sale of Goods. {p) Gee V. Lucas (1867), 16 L. T. 357. If made after the sale there Iq) Pasley v. Freeman (1789), 3 Term Eep. 59. must be anew consideration to support the warranty {Boscorla v. Thomas (1842), Compare per Bayley, J., in Cave v. Coleman (1828), 3 Man. & E. 3 U. B. 234).

(K. B.) 2, at p. 3.

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