LAW OF THE FARM. 305 



may tender the horse which you received to the man yon traded with, and 

 demand the horse you let him have, and if he refuses you can bring replevin, 

 or you can keep the horse and sue him for the damage; in which case you 

 may recover the difference between the value of the horse you obtained as he 

 is, and what he would have been if he had corresponded with the recom- 

 mendation. 



If a man trades me a horse or sells me a horse, and there be any unsound- 

 ness, breachiness, trickiness, or other defect unknown to and nnperceivable 

 by me, but which is known to him; and if he represents the animal free 

 from defect, or even forbears to mention such defect, but intentionally con- 

 ceals it from me, he is guilty of fraud. The well-established rule in such 

 cases is that one party must not practice any artifice to conceal defects, or 

 make any representations for the purpose of throwing the person with whom 

 he is dealing off his guard. If in trading horses you, by your acts, produce 

 the impression upon the person with whom you are trading that your horse is 

 sound when you know he is not, you are perpetrating a fraud. 



When, however, the means of information relative to the facts and circum- 

 stances affecting the value of the animal are equally accessible to both parties, 

 and neither does or says anything tending to impose upon the other, it is called 

 a fair trade. It is not necessary that one should disclose any superior knowl- 

 edge which he may have over the other as to those facts and circumstances. 

 There is no breach of that implied confidence which men are presumed to 

 repose in each other that one party shall not profit by his superior knowledge 

 of the quality of an animal open to the observation of both parties, or equally 

 within the reach of their ordinary diligence, because neither party is expected 

 to repose in any such confidence unless it is specially tendered. Each one in 

 ordinary cases judges for himself, and relics confidently and sometimes, per- 

 haps, presumptuously upon the sufficiency of his own knowledge, skill, and 

 diligence. 



The common law affords to every one reasonable protection against fraud in 

 dealing, but it does not go to the extent of giving indemnity against the con- 

 sequences of indolence and folly or careless indifference to the ordinary and 

 accessible means of information. The law requires the man who trades horses 

 to apply his attention to particulars which may be supposed to be within the 

 reach of his observation and judgment, and honesty and fair dealing require 

 that the other party should communicate those particulars and defects which 

 he knows all about, and which can not be supposed to be immediately within 

 the reach of such attention. If the trader be ignorant of any unsoundness or 

 other defect which the horse may have, a mere representation of soundness 

 will not render him liable. If it is intended to make him accountable under 

 such circumstances he had better insist upon a warranty that the horse is sound 

 or free from such defect. A general warranty is therefore frequently required 

 on horse trades. 



Such warranty extends to all defects, except such apparent failings as are 

 perfectly obvious to the senses, and do not require any kind of skill or pains 

 to discover. A general warranty of soundness will be of no avail against 

 a defect which you know to exist. Though if the trader say or do any thng 

 whatever with an intention to divert your observation from such defects, he is 

 guilty of a fraud. And fraud may be made out, not only from deceptive 

 assertions, and false representations, but from facts, incidents, and circum- 

 stances, which may be trivial in themselves, but decisive evidence in a given 



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