412 WARRANTY 



one of them had a cold, but warranting them nevertheless " sound and 

 free from blemish at the end of a fortnight". 



At the end of the fortnight the buyer refused to complete, as one 

 horse still had a cold and the other a swollen leg. The plaintiff there- 

 upon brought his action for the price, but the jury found for the buyer, 

 and refused a motion for a new trial, on the ground that the warranty 

 applied not to the time of sale but to a future date. This decision 

 recognized the general rule as to patent defects, but found for the buyer 

 apparently on the ground that, the horses not being sound within the 

 time stipulated, he was free to repudiate the contract. 



Another case, which cannot be regarded as altogether satisfactory, 

 is that of Margetson v. Wright (17 Bingham, 603; vide Bingham, 454). 

 In this case the plaintiff, a lawyer, bought a horse for racing purposes 

 of the defendant, who was a horse-dealer. At the time of sale the 

 defendant pointed out to the plaintiff that the animal w r as a crib- biter, 

 and had had a splint, and in consideration of these faults agreed to take 

 a less price than he would have otherwise accepted. The warranty was 

 in these words: 



" And the said Mr. Wright does hereby warrant the said horse to 

 be sound, at this time, in wind and limb ". 



The horse was taken away, put into training, and at the end of six 

 months broke down, and the plaintiff thereupon brought an action and 

 recovered a verdict for breach of warranty. 



A new trial was applied for and granted, and again the jury found 

 for the buyer, on the ground " that, although the horse had exhibited 

 no symptoms of lameness when the contract was made, he had upon 

 him the seeds of unsound ness at the time of the contract, arising from 



o 



the splint". A motion for another new trial was refused. 



The moral to be drawn from this case, is that no one who sells a 

 horse with a patent defect should warrant it without a memorandum 

 upon such warranty that he will not be responsible for any consequences 

 that may arise from such a defect. In another case, Smith v. O'JBryan 

 (Law Times, N.S. 346), the jury gave a verdict for the plaintiff on some- 

 what similar grounds. There the horse fell lame after sale, and the 

 jury found that such lameness arose from a certain splint to which the 

 owner had called the plaintiff's attention at the time of sale. Of course, as 

 already intimated, the general rule that a warranty does not extend to 

 patent defects does not apply where the buyer has no power of inspection : 

 " Where there is no opportunity to inspect the commodity, the maxim 

 caveat emptor does not apply" (per Lord Ellenborough, in Gardiner v. 

 Gray, 4 Camp. 144). 



