206 



PLEADINO, EVIDENCE AND DAMAGES. 



Where the 

 Horse has 

 not been 

 returned. 



V/here the 

 Horse has 

 been ten- 

 dered. 



Expense of 

 Keep. 



"WTiere the Horse lias not been retiu-ned tlie measure of 

 Damages will be the difference between its A-alue with the 

 defect wan-anted against and the value it would have 

 borne without the defect. It was formerly laid down that 

 the measure of Damages would be the difference between 

 the contract price and that for which it would sell with 

 its defect (s) . But the rule in England is now settled as 

 stated above, and the doctrine is the same in America (a). 

 ^^Tiere the Horse has been resold by the piu'chaser before 

 the Breach of Warranty has been discovered, the price 

 obtained at the second sale may be left to the Jury as a 

 mode of estimating what the real value of the Horse, if 

 perfect, would have been ; but the difference between the 

 price and the purchase-money cannot be given as specific 

 Damage on account of the loss of profit which might have 

 been made on it (b). 



But after a Breach of Warranty, the buyer is entitled 

 to recover a reasonable smu of money for the Expense of 

 Keep, where before re-sale he has tendered the Horse to 

 the seller ; and the buyer is entitled to keep the Horse for 

 such reasonable time as is required to sell him to the best 

 advantage (c) . AVhat length of time and smn of money is 

 reasonable for the keep is a question for the Jury ((/). 



The whole subject of Keep was fully considered in the 

 case of Chester man v. Lamb (r/), where an action oi Assumpsit 

 was brought on the Warranty of a Horse, and also for the 

 Expense of his Keep. It appeared at the trial that the 

 defendant sold and delivered the Horse to the plaintiff on 

 the 28tli of June. Early in July the Horse was found 

 to be lame; and on the 10th, upon examination by a 

 Veterinary Surgeon, the complaint was found to be 

 Spa\'in (e). On the 11th of July the plaintiff gave the 

 defendant notice that the Horse was Unsound, and that 

 he should return him and demand back the purchase- 

 money ; and on the 21st the plaintiff sent the Horse to 

 Livery, and informed the defendant that he had done so. 



(z) Caswell X. Coare, 1 Taunt. 566. 



\a) See perBuUer,J., 1 T.R. 136 ; 

 per Lord Eldon, C. J., Curtis v. 

 Sannai/, 3 Esp. 82 ; C/are v. Ma//- 

 nard, 6 A. & E. 519 ; Cox v. Walker, 

 ibid. 523, n. ; Jones v. Just, L. R., 

 3 Q. B. 197; 37 L. J., Q. B. 89; 

 Lodcr V. Kchtle, 3 C. B., N. S. 128; 

 27 L. J., C. P. 27; Mayne on 

 Damages, 3rd ed. 162; Sedgwick 



on Damages, 7th ed. 606. 



{b) Clare v. Maynard, 6 A. & E. 

 519 ; Cox V. Walker, ibid. 523, n. ; 

 Mayne on Damages, 3rd ed. 163. 



[e) M'Kenzie v. Hancock, R. & M. 

 436. 



{d) Chesterman v. Lamb, 2 A. & 

 E. 129. 



((') Spavin, ante, p. 103. 



