136 warranty; sale and warranty by agent, etc. 



plaintiff, as they tliought the Horse unsound at the time 

 of the contract from the Sj)lint, which was in a very had 

 situation, pressing upon one of the sinews, and which 

 would naturally produce lameness when the Horse was put 

 to work (g). 



In a more recent case, in which the defendant sold a 

 Horse to the plaintiff with a generally written Warranty 

 of soundness, but at the same time pointed out a Splint 

 which it had, and the Horse subsequently became lame from 

 , the Splint, it was held that the lameness was a breach of 

 the Warranty. Pollock, C. B., in his judgment, said, 

 " The rule is asked for on the ground that when you point 

 out a Splint to the purchaser, you except it out of the 

 Warranty ; it may be so, if the Horse be blind, or have 

 any other patent defect, wliich is to be seen and is clear ; 

 but here it may well be that the defendant warranted that 

 the Splint should not grow into a lameness. A person 

 buying a Horse is often no judge of Horses, and may say, 

 I don't want to see the defects or blemishes of the Horse, 

 as I really know nothing about them ; I want and must 

 have a written Warranty. I do not see why this Warranty 

 should not be taken thus : ' I show you this Splint, and I 

 warrant the Horse perfectly sound notwithstanding.' It 

 may have been excepted in the Warranty, but there is no 

 exception at all. I think the defendant is liable on his 

 Warranty. This entirely agrees with the decision in ITctr- 

 getson v. Wright (g). Some Splints cause lameness and 

 others do not. A Splint, therefore, is not one of those 

 patent defects, against which a Warranty is inoperative." 

 Bramwell, B., in the same case, in giving judgment for 

 the plaintiff based his decision upon the broader ground, 

 that where the Warranty is a written one, it cannot be 

 modified by parol evidence to the effect that the defect 

 existed at the time, and was therefore excluded from the 

 Warranty (//). 

 Conclusion to The conclusion then to be drawn from the recent cases 

 be drawn from on this subject appears to be; — that the patent defects, 

 the cases. which the Warranty does not cover, and to which the doc- 

 trine of Caveat emptor applies, must be so manifest and 

 palpable, as to be necessarily within the knowledge and 

 apprehension of the purchaser, and also such defects as 

 at the time of sale either are, or will inevitably produce, 



(r/) Margetson v. Wright, 1 M. & {h) Smith v. O'Brien, 11 L. T., 



Sco. 627. N. S. 346. 



