51iJ EEPRESENTATION AND WARRANTY. 



CHAPTER XV. 



HORSES AND CATTLE. 



W/icn ihci'P is no warranty the rule " Caveat emptor " applies to sales ; 

 and excej^t there he deceit, eithefr hy fraudulent comealment or a fraudulent 

 misrepresentation, no action for unsoundness lies by the vendee against 

 the vendor, upon the sale of a horse or other animal {ffill v. Balls). It 

 Avas formerly a current notion that a sound price was tantamount to a 

 warranty of soundness. Lord Mansfield C.J., however (a.d. 1778), 

 ruled in Stuart v. Wilkins that there must be an express warranty of 

 soundness, which extends to all faults, known or unknown to the seller, 

 in order to maintain an action. If a seller warrant a horse sound, he 

 does it at his peril if the horse was not sound at the time of the sale, 

 whether he knew it or not (1 LoflFt. 14G). But jj^r Erskine J.: "Where 

 there is evidence of a warranty, the fairness of the price paid is a 

 circumstance tending to confirm that evidence " {Kiddell v. Burrmrd). 

 It need not be averred, nor if averred proved, that the defendant knew 

 of the unsoundness {WiUia)nson v. Allison). 



In Salmon v. Ward, Best C.J. laid down t/ie distinction hctween a 

 representation and a tvarranty. Xo direct evidence had been given of 

 anytliing that passed at the time when the contract Avas made ; but 

 some letters were put in, one of them written by the plaintiff, which 

 contained these words, " You will remember that you represented the 

 horse to me as a five-year-old, &c. ; " and one from the plaintiff, in 

 which the defendant in answer, stated, inter alia, "The horse is as I 

 represented it." On this his Lordship observed : " The question is 

 whether I and the jury can collect that a warranty took place. I quite 

 agree that there is a difference between a Avarranty and a representa- 

 tion ; because a representation must be known to be false. No parti- 

 cular words are necessaiy to constitute a Avarranty. If it were so, there 

 Avould be more tricks in horse cases than there are at present. If a 

 man say.s, 'This horse is sound,' that is a warranty. If the jury found 

 that the representation alluded to in the letters occurred at the time of 

 the sale, and witiiout any qualification, then I am of opinion that it is a 



