72 SALE FOR A SPECIFIED PURPOSE. 



the horse and claim an abatement on the price except there 

 be an express agreement to that ett'ect between him and the 

 seller, (a) The principle in both countries is the same — 

 viz., restitutio in integrum, the means adopted to secure the 

 end alone are different. Lord Chelmsford said upon this 

 matter : — " If a horse is sold with a warranty of soundness, 

 and it turns out to be unsound, in England the purchaser 

 cannot return the horse unless there is a stipulation in the 

 agreement that if the horse does not answer to the warranty 

 he shall be at liberty to return it, but all he can do is to 

 offer to return the horse to the seller, and if the seller 

 refuses to take it back, then he may sell the horse, and 

 recover from the seller the difference in price between a sound 

 and an unsound horse — that is to say, the difference between 

 the price which the horse realised upon the sale, and the price 

 which he had paid. In Scotland, as I understand, there is 

 an absolute right to return the horse upon the discovery of 

 its unsoundness witliout there being any stipulation to that 

 effect in the agreement between the parties."(^) ^i^<i when 

 the seller of a horse improperly refused to take it back, when 

 tendered, in terms of the bargain of sale, it was held that 

 the purchaser did not incur liability for its subsequent 

 deterioration whilst in his custody, unless imputable to his 

 own act or gross negligence, (c) 



58. Sale for a Specified Purpose. — Under the common 

 law, previous to 1856, there was an implied warranty Avhen 

 a horse was sold for a particular purpose, that it must be 

 reasonably fit for that purpose, whether the seller knew of 

 the defect or not. Thus, a horse specially bought and sold 

 as a quiet, well-tempered horse," fit to be ridden by a gentle- 

 man advanced in life," was found vicious and sulky, and apt 

 to shy at vehicles, &c., and to rear and plunge ; it was found 



(a) See §§ 20, 36, 89. 



(b) Couston ai- Co. V. Chapman, 1872, 10 M., H.L. 74, 81. 



(c) Graham v. ]Yilson, 1839, 1 D. 407. 



