78 SALE AND MORTGAGE. 



seller objects and says, "I will warrant," the latter is liable 

 for the defect.^" Where the seller informed the buyer that 

 one of the two horses sold had a cold, but agreed to deliver 

 both at the end of a fortnight "sound and free from blemish,'' 

 and delivered them at that time, the cough still continuing 

 and the other horse having a swollen leg from a kick received 

 in the stable, and the seller brought an action to recover the 

 price, which he failed in — the court refused to grant a new 

 trial on the ground that the defects were patent, since the war- 

 ranty did not apply to the time of sale only, but was a con- 

 tinuing one to the end of the fortnight.'^ 



A warranty may be prospective in its operation, as that a 

 horse will be sound after a certain time.^^ And if an animal 

 is warranted sound for a day or a month, the duration of the 

 warranty is limited and complaint must be made or the animal 

 returned within the time fixed,®* and it is immaterial that the 

 seller may have known of the unsoundness at the time of the 

 sale.'* And, in general, the seller's knowledge of the defect 

 will not defeat a warranty where there is no misrepresentation 

 or concealment.®' On the other hand, any fraud at the time 



faults there are; and the seller is not answerable for them if he does not 

 make use of any fraud or practice to conceal them:" Oliph. Horses 

 <Sth ed.) 152. 



'° Oliph. Horses (sth ed.) 132, citing Dorrington v. Edwards, 2 Rol. 188. 



" Liddard v. Kain, 9 Moo. 356. 



°'2 Schoul. Pers. Prop. (2d ed.) § 332, controverting Blackstone's 

 statement to the contrary. 



=* Chapman v. Gwyther, L. R. i Q. B. 463. So, if the animal on trial 

 is found to have defects. Trial means a reasonable trial. Unless such trial 

 has been prolonged by subsequent misrepresentations of the seller, the 

 animal should be returned as soon as the defects are discovered: Adam 

 V. Richards, 2 H. Bl. 573. 



" Bywater v. Richardson, 3 N. & M. 748. 



"^ Anon. Lofft 146. 



And the seller need not know of the unsoundness to be liable on an 

 express warranty: Norris v. Parker (Tex. Civ. App.), 38 S. W. Rep. 259; 

 Carter v. Cole (Tex. Civ. App.), 42 id. 369; Sanders v. Britton (Tex. Civ. 

 App.), 47 id. sso. 



