492 UNSOUNDNESS 



makes him his own. The warranty of a servant is considered to be binding on 

 the master.* 



If the horse should be afterwards discovered to have been unsound at the time 

 of warranty, the buyer may tender a return of it, and, if it be not taken back, 

 may bring his action for the price j but the seller is not bound to rescind the 

 contract, unless he has agreed so to do. 



Although there is no legal compulsion to give immediate notice to the 

 seller of the discovered unsoundness, it will be better for it to be done. The 

 animal should then be tendered at the house or stable of the vendor. If he 

 refuses to receive him, the animal may be sent to a livery-stable and sold ; and 

 an action for the difference in price may be brought. The keep, however, can 

 be recovered only for the time that necessarily intervened between the tender 

 and the determination of the action. It is not legally necessary to tender a 

 return of the horse as soon as the unsoundness is discovered. The animal 

 may be kept for a reasonable time afterwards, and even proper medical means 

 used to remove the unsoundness; but courtesy, and indeed justice, will require 

 that the notice should be given as soon as possible. Although it is stated, 

 on the authority of Lord Loughborough, that " no length of time elapsed 

 after the sale will alter the nature of a contract originally false," yet it seems 

 to have been once thought it was necessary to the action to give notice of the 

 unsoundness in a reasonable time. The cause of action is certainly complete on 

 breach of the warranty. 



It used to be supposed that the buyer had no right to have the horse medi- 

 cally treated, and that he would waive the warranty by doing so. The question, 

 however, would be, has he injured or diminished the value of the horse by this 

 treatment? It will generally be prudent for him to refrain from all medical 

 treatment, because the means adopted, however skilfully employed, may have 

 an unfortunate effect, or may be misrepresented by ignorant or interested 

 observers. 



The purchaser possibly may like the horse, notwithstanding his discovered 

 defect, and he may retain, and bring his action for the depreciation in value on 

 account of the unsoundness. Few, however, will do this, because his retaining 

 the horse will cause a suspicion that the defect was of no great consequence, 

 and will give rise to much cavil about the quantum of damages, and after all, 

 very slight damages will probably be obtained. " I take it to be clear law," 

 says Lord Eldon, "that if a person purchases a horse that is warranted, 

 and it afterwards turns out that the horse was unsound at the time of the war- 

 ranty, the buyer may, if he pleases, keep the horse, and bring an action on the 

 warranty ; in which he will have a right to recover the difference between the 

 value of a sound horse, and one with Buch defects as existed at the time of war- 

 ranty ; or he may return the horse, and bring an action to recover the full 

 money paid : but in the latter case, the seller has a right to expect that the horse 

 shall be returned to him in the same state he was when sold, and not by any 

 means diminished in value ; for if a person keeps a warranted article for any 

 length of time after discovering its defects, and when he returns it, it is in a 

 worse state than it would have been if returned immediately after such dis- 

 covery, I think the party can have no defence to an action for the price of the 

 article on the ground of non-compliance with the warranty, hut must be left to 

 his action on the warranty to recover the difference in the value of the article 

 warranted, and its value when sold." t 



* The "weight ■ of authority decides that the master is bound by the act of the servant* 

 Lnid Kenyon, however, had some doubt on the subject. 

 t Curtis v. Hcmnay, 3 Esp. 83. 



