horse. Court refused to interfere, where evidence had been Warranty of given on both sides, and the judge who tried the cause declared he would have been better satisfied had the verdict been the other way (2). Where there has been a special warranty, the vendor will be liable for a partial breach: thus, proof that a horse is a good drawer, will not satisfy a warranty that he is a good drawer and pulls quietly in harness" (a). Upon the question of what constitutes a breach of a general warranty of soundness, a variety of cases have been decided. injury. It was ruled by Eyre, C. J., that a mere tempo- Temporary rary injury or hurt, which is capable of being speedily cured or removed, is not a breach of a general warranty of soundness (b). But Lord Ellenborough held, that any infirmity, of such a nature as to render the animal less fit for present use, constituted an unsoundness, and that it was not necessary to be either permanent or incurable (c); such as a temporary lameness or cough (d), Lameness. or a "snap" in the eye,-which is explained to Congh. (≈) Lewis v. Peake, 7 Taunt. 153. Gibbs, C. J., mentioned a similar case, ib. 154. And see 8 B. Moore, 33. (a) Coltherd v. Puncheon, 2 D. & R. 10. (b) Garment v. Barrs, 2 Esp. 673. (c) Elton v. Jordan, 1 Stark. N. P. C. 127; Elton v. Brogden, 4 Campb. 281. (d) 1 Stark. N. P. C. 127. Shillitoe v. Claridge, 2 Chit. Rep, 425, `See King v. Price, id. 416. Warranty of horse. Roaring. mean an injury arising from a slight blow (e). It has been held that, under a general warranty, Crib biting.“crib-biting” is not an unsoundness; although it was proved to be the result of indigestion in the animal, and sometimes an indication of incipient disease, leading to unsoundness (ƒ). And mere Bad shape. badness of shape, though a possible cause of subsequent lameness, is not an unsoundness (g). So, it has been held that "roaring" is not an unsoundness, where it merely results from a bad habit, or from any cause which does not interfere with the general health and muscular powers of the animal (h). But it is otherwise where the " roaring" is symptomatic of organic disease (i). And in a case where it was proved, that the disorder arose from the neck of the wind-pipe being too narrow for accelerated respiration, (being frequently produced by sore throat or other topical inflammation,) and was then of such a nature as to incommode a horse very much when pressed to his (e) Morris v. Lithgoe, 2 Smith Rep. 396. (f) Brannenburgh v. Haycock, Holt, N. P. C. 630. But it is said that "crib-biting" has been held to be a vice within the meaning of a warranty that the horse "was free from vice;" Paul v. Hardwick, Hil. T. 1831, MS., cited Chit. Contr. 368, note (1), (2nd Ed.). (g) Dickenson v. Follett, 1 M. & Rob. 299. But if lameness were actually produced, though indirectly, it would be a breach of the warranty. See id. 300; 8 Bingh. 454; infra, p. 359 (n). (h) Bassett v. Collis, 2 Campb. 523, cor. Lord Ellenborough, C. J. The same was ruled by Mansfield, C. J., ibid. (i) Ibid. of horse. speed,-Lord Ellenborough held that this consti- Warranty tuted an unsoundness (k). It has been held that Chesta horse which is "chestfoundered" is unsound (1). foundered. With respect to "thrushes," "splints," and "quid- Quidding. ding," it has been said that a diversity of opinion prevails, and that, from the contradictory evidence given by veterinary surgeons respecting the nature of these infirmities, no general rule on the subject can be laid down (m). But from a subsequent decision it may be collected, that a "splint" is not Splint. in itself an unsoundness, as the nature of the infirmity appears to be that it may or may not, according to circumstances, be the efficient cause of lameness; yet, that, if proof be given at the trial that lameness has actually been produced by the splint, although there may have been no symptoms of lameness at the time of the contract, the plaintiff will be entitled to recover (n). A " nerved" horse is unsound; the operation of "nerving" Nerving. (k Onslow v. Eames, 2 Stark. N. P. C. 81. (1) Atterbury v. Fairmanner, 8 B. Moore, 32. (m) 2 Campb. 524, n. (n) Margetson v. Wright, 1 M. & Scott, 622; S. C. 8 Bingh. 454. See per Tindal, C. J., 1 M. & Sc. 627; "The jury found, that, although the horse exhibited no symptoms of lameness at the time when the contract was made, he had then upon him the seeds of unsoundness arising from the splint.'. . . . If the lameness complained of had proceeded from a new or different splint, or from the old splint taking a new direction in its growth so as to affect a sinew, not having affected one before, such a lameness would not have been within the warranty; for it would not have constituted a present unsoundness at the time of the warranty of horse. Warranty being the dividing of a nerve in the leg, usually performed in order to relieve the animal from the pain arising from a disease in the foot (0). Amount of damages. III. DAMAGES. The plaintiff is in general entitled to recover in respect of all losses which have resulted immediately from the breach of warranty (p). Thus, where a warranty had been given on the sale of a chain-cable, it was held, that the plaintiff might recover the value both of the cable itself, and of an anchor which had been attached thereto, and which had been lost by the breaking of a link in the cable (q). So, where the vendee has been induced by the warranty of the defendant to sell the chattel with a warranty to a third party, and the made; but the jury find that the very splint in question is the efficient cause of lameness." In a recent case at nisi prius it was held that "bone spavin," though unattended with actual lameness, was an unsoundness,--being a probable cause of future lameness; Watson v. Denton, 7 C. & P. 85. So, where several sheep had been sold "warranted sound," and it appeared that, although they were apparently thriving at the time of the sale, the greater part had afterwards died from a disease called the "goggles,"-Abbott, C. J., left it to the jury, "whether, at the time of the sale, the sheep had, existing in their blood or constitution, the disease of which they afterwards died; or whether it had arisen from any subsequent cause?"Joliff v. Bendell, Ry. & M. 136. (0) Best v. Osborne, Ry. & Moo. 290. (q) Borradaile v. Brunton, 2 B. Moore, 582. latter sues and recovers for the breach, the vendee Damages. is entitled to recover the costs and damages of such action (the defendant having had notice thereof), as a part of the damages which he has sustained by reason of the false warranty (r). chattel has turned. The purchaser is not bound to offer to return Where the the chattel sold (s), nor is the vendor bound to been rereceive it if offered (t): but if the purchaser has actually returned it, and the vendor has agreed to accept it, the measure of damages, in an action for the breach of warranty, necessarily is the amount of the price which has been paid (u). If the Where it chattel has not been returned, the measure of returned. damages is, the difference between the actual value of the goods and the value which the plaintiff would have been entitled to expect had the contract been faithfully performed (r). And, as (r) Lewis v. Peake, 7 Taunt. 153; S. P. Pennell v. Woodburn, 7 C. & P. 117. It has been ruled, that, if the purchaser resells with a warranty, and the second vendee brings an action against him for the breach, the original seller is a competent witness for the defendant; Briggs v. Crick, 5 Esp. 99; Baldwin v. Dixon, 1 M. & Rob. 59. But in a recent case it was ruled contra; Biss v. Mountain, 1 M. & Rob. 302, cor. Alderson, B., 1833. (s) See below, p. 363. (t) Supra, p. 327, et seq. and 328, note (1). (u) Creswell v. Coare, 1 Taunt. 566. Bridge v. Wain, 1 Stark. N. P. C. 504. (x) Bridge v. Wain, 1 Stark. N. P. C. 504. See 3 Esp. 84. Or, the difference between the actual value and the price given ; see 1 Taunt. 568. There seems to be a possible distinction be has not been |