GENERAL NATURE OF A WARRANTY, ETC. 79 



of the sale will avoid it, though it does not amount to a breach 

 of the warranty.^® 



Where a horse answers a warranty at the time it is sold and 

 its subsequent bad conduct is due to the plaintifif's unskilful 

 driving, he cannot recover for breach of warranty.'*'' And if 

 the purchaser has failed to return a horse and by the applica- 

 tion of medicines or otherwise has lessened his value, he can- 

 not allege the breach of warranty as a defence in an action for 

 the price."^* But where a warranty that horses were "all 

 right" was a conditional one, involving the necessity of the 

 purchaser's treating a defect in a certain way, it was held in 

 an action for the breach of the warranty that he was bound to 

 use such treatment, and that this was a good excuse for his 

 refusing to try another treatment which might hazard the 

 effect of the warranty."*® 



The evidence to show a breach of warranty must not relate 

 to a time too remote; therefore proof that a horse balked 

 seven weeks after he was sold was held not sufficient to show 

 a breach of warranty that he was true to harness.^" And 

 where a bull-calf at the time of sale was but three rnonths old, 

 free from apparent defect, and seen by the purchaser, it was 

 held that there was no legal presumption that his sterility 

 which appeared two years later existed at the time of the sale 

 and that there was no implied warranty that he would pos- 

 sess the power of procreation at maturity.®^ The right of 

 action for the breach of a warranty of a horse in a conditional 

 sale arises at once as in the case of an absolute sale, as where 



°° Steward v. Coesvelt, i C. & P. 23; Croyle v. Moses, 91 Pa. St. 250. 



Though the seller of a stock of cattle refuses to warrant the number of 

 them, he may be liable for fraudulent representations as to their number: 

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



" Geddes v. Remington, 5 Dow. 159, where the warranty was that the 

 horse was "thorough broke for a gig." 



" Curtis V. Hannay, 3 Esp. 82. 



" Smith V. Borst, 63 Barb. (N. Y.) 57. 



™ Smith V. Swarthout, 15 Wis. 550. 



" White V. Stelloh, 74 Wis. 435. 



