122 



warranty; sale and warraniy v.y ag?:nt, etc. 



Unfitness 

 must be 

 clearly 

 proved. 



General rule. 



satisfy a Warranty that he is " a good drawer and pulls 

 quietly in harness." And the Coiu-t of King's Bench 

 held that it was quite clear these were convertible terms, 

 because no Horse can be said to be a good dratcer if he will 

 not pull quietly in harness, and therefore proof that he is 

 merely a good puller will not satisfy the Warranty ; the 

 word good must mean " good" in all particulars (A-). And 

 where a Horse was warranted " sound and quiet in all 

 respects," Lord Abinger, 0. B.,held it to include the being 

 quiet in harness (/). But where the Warranty was as 

 follows, viz., " Eeceived from A. the sum of 00/. for a 

 black Horse rising five years, quiet to ride and drive, and 

 warranted sound up to this date, or subject to the examina- 

 tion of a veterinary surgeon;" it was held that there was 

 no Warranty that the Horse was quiet to ride and drive {m) . 



But in setting up a Breach of such a Warranty, it 

 must be clearly proved that the Horse at the time of sale 

 was unfit for the purpose for which ho was bought ; and 

 if he has gone quietly with persons of ordinary skill, 

 there will be a strong presumption that he answers his 

 Warranty. In the following case it appeared that a 

 Horse warranted " a thoroughbroke Horse for a Gig," 

 kicked and broke the Gig, &c. the first time he was 

 driven by the pui"chaser. This was, however, two months 

 after sale, but in the meantime other persons had driven 

 him, and he had always answered his Warranty. It was 

 decided that this was no breach, because as the Horse had 

 previously behaved as he had been warranted, his bad 

 conduct must be attributed and have been owing to the 

 purchaser's want of skill in driving (n). And in the case 

 of Buckingham v. Reeve, Pollock, C. B., said, " A Horse 

 put into a new harness and an unaccustomed carriage once 

 or twice might kick, and yet be deserving of a Warranty 

 of being quiet in harness" {u). 



The general rule, then, is this : — Where the purchase 

 is of a defined and well-known article, the vendor per- 

 forms his part of the contract by sending that article, 

 and it is the vendee's concern, whether it answers the 

 j)urpose for which he wanted to use it or not. And if 

 a man purchase goods of a tradesman, without in any way 



(^■) Colthercl v. Puncheon, 2 D. & T., N. S. 433. 



R. 10. («) Geddes v. Pennington, 5 Dow, 



[I) Smith V. Parsons, 8 C. & P. 164. 



199. (o) Buckingham v. Reeve, N. P. 



[ill) A/'fhoug V. Enhtcad, 37 L. Ex. Dec. 1, 1857. 



