Rule of law. Where the consideration fails. Mode of try within the exception (h). And a Warranty may be inferred from usage of trade, or from the nature of the trade being such as to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons; as where articles are bought in a shop professedly carried on for the sale of goods (i). Nevertheless it must still be taken as a rule of law, that, with regard to the sale of ascertained chattels, there is not any implied warranty of either title or quality, unless there are some circumstances beyond the mere fact of a sale, from which it may be implied (k). The case of Morley v. Attenborough (1), recognized and affirmed by subsequent decisions (m), establishes the rule with respect to title; and with respect to quality it is no less firmly established (n). And in a more recent case (0) Mr. Baron Martin said, "That in his view of the law, where there is no Warranty, the rule caveat emptor applies to sales, and except there be deceit, either by a fraudulent concealment or fraudulent misrepresentation, no action for Unsoundness lies by the vendee against the vendor upon the sale of a Horse or other animal.” If it be shown that it was the understanding of both parties, that the bargain should be put an end to if the purchaser should not have a good title, it would seem that the purchaser may recover back his money as on a consideration which has failed (7). A dispute respecting the title of different parties to a ing a disputed Horse may be decided by an interpleader issue. Thus, a title. (h) Morley v. Attenborough, 18 L. J., Ex. 148; Eicholz v. Bannister, 11 Jur., N. S. 15. And Mr. Benjamin, in his work on Sales (2nd ed. pp. 522, 523), goes still further and says: "The exceptions have become the rule, and the old rule has dwindled into the exception, by reason, as Lord Campbell said, of its having been well-nigh eaten away;" and then proceeds to lay down the following rule as in accordance with these cases, viz.: "A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and, therefore, he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold." And see Campbell on Sales, 328. (i) Sims v. Marryat, 17 Q. B. 281. (k) Hall v. Conder, 2 C. B., N. S. 40; Bagueley v. Hawley, L. R., 2 C. P. 625; 36 L. J., C. P. 328. See Broom's Maxims, 4th Ed. 768. (1) Morley v. Attenborough, 18 L. J., Ex. 148; Eicholz v. Bannister, 11 Jur., N. S. 15. (m) Hall v. Conder, 2 C. B., N. S. 40. See Broom's Maxims, 4th Ed. 768. (n) Chanter v. Hopkins, 4 M. & W. 399. (0) Hill v. Balls, 2 H. & N. 304. See also Osborne v. Hart, 23 L. T., N. S. 851; 19 W. R. 331-Ex. question was tried whether certain Race horses named Ægis, Ninnyhammer, and War Eagle, were the property of the plaintiff when they were seized in execution by the sheriff of Cambridgeshire, at Newmarket, under a fi. fa., consequent on a judgment obtained by the defendant against a gentleman named Carew, and the Jury found a verdict for the plaintiff (p). But an interpleader order will not be granted where the respective claims are not co-extensive. Thus, where the defendant, the proprietor of a Horse Repository, sold there, by public auction, a Horse to the plaintiff, warranted quiet to ride and in harness, but subject to a condition by which, if considered by the buyer incapable of working from any infirmity or disease, it might be returned on the second day after the sale, and the matter determined by veterinary surgeons according to the terms provided for in such condition; and the horse was accordingly returned by the plaintiff, who demanded to have back the money he had paid for the purchase, and this being refused he brought an action against the defendant for breach of warranty; and the person who had placed the Horse at the Repository for sale claimed of the defendant the proceeds of the sale, stating that the Horse had left the Repository perfectly sound. It was held that the defendant was not entitled to an interpleader order (9). The reason laid down for requiring a Warranty of Reason for soundness in buying a Horse is, that it is well known requiring a Warranty. they have secret maladies which cannot be discovered by the usual trials and inspections, and that a Warranty prevents the purchaser from being damnified by those latent Defects against which no prudence can guard; as it differs from the case of a manufactured article, where a merchant, by providing proper materials and workmanship, may prevent Defects (r). And the late Mr. Youatt said, "A man should have a more perfect knowledge of Horses than falls to the lot of most of men, and a perfect knowledge of the vendor too, who ventures to buy a Horse without a Warranty" (s). But the same, mutatis mutandis, may very justly be said of a person who ventures to give a Warranty on the sale of a Horse. (p) Ford v. Sykes, before Lord Campbell, C. J., Cambridge Spring Assizes, 1853. (9) Wright v. Freeman, 48 L. J., C. P. 276; 40 L. T., N. S. 134. () 1 Rol. Abr. 90; Jones v. Bright, 5 Bing. 544. (8) Lib. U. K. "The Horse," 368. Buyer should protect himself by one. What constitutes a Warranty. Article named If a buyer, however, means to protects himself from hidden defects, he must take a Warranty, and he is not protected otherwise, unless he can make out fraud (t). It is much better both for the buyer and seller when the latter states whether he professes to warrant or not; because where nothing has been said on that point, a considerable degree of doubt must frequently rest upon the case and then it is only by interpreting the expressions used at the time of sale that even an opinion can be formed as to whether a Warranty were ever intended. No particular words are necessary to constitute a Warranty; if a man says, "This Horse is sound," that is a Warranty (u); and it is not necessary that the seller should say, "I warrant;" it is sufficient if he says that the article is of a particular quality or is fit for a particular purpose (v). The general Rule laid down by Mr. Justice Bayley is, that whatever the vendor represents at the time of sale is a Warranty (x). Therefore if a person at the time of sale say, "You may depend upon it the Horse is perfectly quiet and free from Vice," it is a Warranty (y). If an article sold is described, the description amounts to a Warranty or a condition precedent that it shall be an article of the kind described (z). Words, however, of expectation and estimate only do not amount to a Warranty (a). So it was held that a Sold Note amounted to a Warin a Sold Note. ranty that the article delivered should be as named in the note, the contract being a sale of a certain known article of commerce (b). Buyer entitled to article commercially And when goods are sold under a certain denomination, the buyer is entitled to have such goods delivered to him known by the as are commercially known under this denomination, though he may have bought after inspection of the bulk, and without Warranty (c). name. (t) Ormrod v. Huth, 14 M. & W. 661. (u) Per Best, C. J., Salmon v. (v) Per Best, C. J., Jones v. (x) Wood v. Smith, 4 C. & P. 45. (2) Bowes v. Shand, L. R., 2 App. Cas. 455; 46 L. J., Q. B. 561. (a) M'Connel v. Murphy, L. R., 5 P. C. 203; 28 L. T., N. S. 713. (b) Henderson v. Blake, Q. B. 1852; 3 M. Dig. 326. (c) Josling v. Kingsford, 32 L. J., C. P. 94. See also Allen v. Lake, 18 Q. B. 560; Wieler v. Schilizzi, 17 C. B. 619; Carter v. Crick, 28 L. J., Ex. 238. mount to a There was at one time a general opinion that a Sound A sound price price given for a Horse was tantamount to a Warranty not tantaof Soundness; but Lord Mansfield considered the doc- Warranty. trine to be so loose and unsatisfactory that he rejected it, and laid down the following Rule: "There must either be an express Warranty of Soundness, or Fraud in the seller, to maintain an action" (d). A General Warranty is an unconditional undertaking A General that a Horse or any other article really is what the War- Warranty. rantor professes it to be. A Warranty may be either General or Qualified. If a A Qualified person at the time of his selling a Horse say, "I never Warranty. warrant, but he is sound so far as I know," it is a Qualified Warranty, and an action for breach of Warranty may be maintained upon it by the purchaser, if it can be proved that the seller knew of the Unsoundness (e). By the conditions of sale at Repositories and public A Limited Auctions, a specified short time is usually allowed, within Warranty. which the purchaser must give notice of any breach of Warranty. If he neglect to do this, he has no remedy, unless such condition has been rendered inoperative by Fraud or Artifice. And in a case where a warranty was to last till the noon of the following day, when the sale was to become complete, Mr. Justice Littledale said, “The Warranty here was as if the vendor had said, 'after. twenty-four hours I do not warrant;' such a stipulation is not unreasonable” (ƒ). In the case of Chapman v. Gwyther (g) the seller of a Horse signed the following Warranty: "June 5th, 1865. Mr. C. bought of Mr. G. G. a bay Horse for ninety pounds. Warranted Sound. £90. "Warranted Sound for one month.-G. G." G. G. The Court of Queen's Bench held that the latter words limited the duration of the Warranty, and meant that the Warranty was to continue in force for one month only; and that the complaint of Unsoundness must therefore be made by the purchaser within one month of the sale. The purchaser, however, may return the Horse at any (d) Parkinson v. Lee, 2 East, 323. (e) Wood v. Smith, 4 C. & P. 45. See also Pinder v. Button, 7 L. T., N. S. 269. (f) Bywater v. Richardson, 1 A. & E. 508; S. C. 3 N. & M. 748; and see Best v. Osborne, 2 C. & P. (g) L. R., 1 Q. B. 463; 35 L. J., A Special A Written A Special Form of Effect of a time within that specified in the Warranty, even though he has notice of the breach of Warranty before he removes the Horse, and the Horse, through an accident, becomes depreciated in value (h). When there is any suspicious place apparent to the parties, which they discuss, or if the seller knows of some defect and does not wish to answer for any Unsoundness which may proceed from it, he should give a Warranty specially excepting his liability for any unsoundness which may proceed from the defect in question (i); or expressly state what he warrants: as where a Mare was warranted to be "a good hunter, and to have one eye" (k). But where the purchaser requires the vendor to be answerable for some defect, he should take a Special Warranty against the effects which may be likely to proceed from it. The buyer should always take care to distinguish between a Warranty and a Representation (1); however, he is safe if he take a Written Warranty, and refuse to believe any Representation the seller will not commit to paper. A Written Warranty should comprehend not only Soundness, but freedom from Vice, and also Quietness and Age, if necessary. Also any Special terms which may have been agreed upon at the time of sale; for instance, an agreement to take back the Horse, in case he does not suit or is unsound, should be made a part of the Written Warranty or Agreement upon which the sale is effected (m). The following form of Receipt and Warranty will be found, for general purposes, short and comprehensive : "Received of P. J. D. fifty pounds for a grey Gelding, warranted only six years old, Sound, free from Vice, and quiet to ride or drive either in single or double harness. £50. R. F." Where the whole matter passes in parol, all that has passed may sometimes be taken together as forming parcel of the contract, though not always, because matter talked of at the commencement of a bargain may be excluded by (h) Head v. Tattersall, L. R., 7 (i) Jones v. Cowley, 4 B. & C. 445; S. C. 6 D. & R. 533; and Hemming v. Parry, 6 C. & P. 580. (k) Higgs v. Thrale, before Chief Baron Pollock, Feb. 18, 1850. (7) See post, p. 138. (m) Payne v. Whale, 7 East, 274. |
