RETURN ON BREACH OF WARRANTY. 97 



of warranty in reduction of damages.''" But where the de- 

 fendant had agreed to buy a pair of horses if they were passed 

 as sound by a veterinary surgeon, and the latter had. without 

 the defendant's knowledge, been promised a commission by 

 the owner if a sale was effected, after which he certified the 

 horses to be sound, it was held, in an action for the price — the 

 defendant having rejected the horses and stopped the pay- 

 ment of his check, that it was immaterial to consider whether 

 the surgeon had or had not been influenced by the promise of 

 a commission, and that the plaintiff could not recover the 

 amount of the check.^''^ Where the purchaser has the right 

 to return an animal, that right is unaffected by an accident 

 having happened to it while in his possession, without neglect 

 or default on his part.^'^ The return is not necessary, how- 

 ever, where a horse has been so far injured as to have lost all 

 use as a horse. ^''^ And if the horse dies before the time fixed 



"° Oliph. Horses 157. And see Trumbull v. O'Hara (Conn.), 41 Atl. 

 Rep. 546. 



'"Shipway V. Broadwood, 80 L. T. N. S. 11. 



'" Head v. Tattersall, L. R. 7 Ex. 7, where it was also held that a casual 

 conversation with the seller's groom before the buyer took avi'ay the horse, 

 in which the latter was informed of the breach of warranty, did not de- 

 prive him of his right under the contract to return the horse. 



™ Chapman v. Withers, 20 Q. B. D. 824. 



In 32 Solic. Journ. 520, commenting on this case, it is said: "It had al- 

 ready been decided in Head v. Tattersall . that horses were so far 

 an exception to ordinary goods that a condition for return did not re- 

 quire them to be returned in the same condition as when taken away, 

 but could be satisfied although they had been damaged by an accident 

 not arising from the purchaser's default. The present case goes further 

 and says that the return itself is not necessary, if the animal has been so 

 far injured as to have lost all use as a horse. Perhaps the result of the 

 decision is better than the reasoning. This latter implies that if the horse 

 is at all capable of being removed without fatal injury, the actual return 

 within the time appointed must be made. In other words, in any case of 

 serious injury the purchaser must inflict on the horse the cruelty of trav- 

 elling or must run the risk of losing his action on the warranty. Surely 

 it would have been better to interpret the condition as being for a return 

 within two days, or as soon thereafter as possible, rather than to have ex- 

 cused- the return altogether on the ground that the horse was practically 

 dead." 



7 



