74 SALE AND MORTGAGE. 



by Stockmen that the number of calves branded be multiplied 

 by four to get the number of cattle in the brand.^^ 



26. Validity; Damages The rule of "caveat emptor" applies 



to sales of animals, where there is no fraud, concealment or 

 warranty. Therefore, the mere fact of selling knowingly a 

 glandered horse is not an illegal act at the common law.^* 

 And a statute imposing a penalty on the sale of a diseased 

 animal does not make the trade of a glandered horse so ab- 

 solutely void that the person defrauded can replevy the horse 

 he exchanged without prior demand and tender back of the 

 boot-money.^^ The general subject of the sale of animals 

 afflicted with contagious or infectious diseases will be treated 

 of hereafter.^^ 



In England a horse dealer cannot maintain an action upon a 

 private contract for the sale and warranty of a horse made on 

 a Sunday.^* Otherwise, of the sale of a horse not made in 

 the exercise of an ordinary calling.*" 



A verbal agreement to pay for a colt after it was weaned 

 was held to be within the Statute of Frauds, the performance 

 requiring eleven months for gestation and four months more 

 for weaning.*^ 



^° Cabaness v. Holland (Tex. Civ. App.), 47 S. W. Rep. 379. 



'" Hill V. Ball, 2 H. & N. 299. And see Ward v. Hobbs, 4 App. Cas. 13; 

 Court V. Snyder, 2 Ind. App. 440. C£. Bodger v. NichoUs, 28 L. T. N. S. 

 441. 



That where a horse is for any purpose worthless there is total failure o£ 

 consideration, irrespective of warranty, see Danforth & Co. v. Crook- 

 shanks, 68 Mo. App. 311. 



^' Havey v. Petrie, 100 Mich. 190. 



" See § 88, infra. '' Fennell v. Ridler, 8 D. & R. 204. 



As to whether a private individual can maintain an action against a dog- 

 dealer upon the warranty of a dog sold on a Sunday, see Tronghear v. 

 Dewhirst (Co. Ct. case), criticised in 94 L, T. 2. 



Where a Sunday exchange is invalid, a party may nevertheless maintain 

 replevin if the horse is retaken from his possession by the other party: 

 Kinney v. McDermot, 55 la. 674. 



™ Drury v. Defontaine, i Taunt. 131. 



=' Lockwood V. Barnes, 3 Hill (N. Y.) 28. That a contract entirely 



