98 SALE AND MORTGAGE. 



for his return, that fact wih not prevent recovery in an action 

 for breach of warranty."* So where the purchaser has an op- 

 tion to rescind in a certain time, he may rescind on the death 

 of the horse within that time and need not return the car- 

 cass. ■'^^ 



Where the contract is to supply a horse fit for a certain pur- 

 pose and he does not answer that purpose, the buyer may re- 

 scind the contract, if he has not kept the horse longer than 

 necessary for a reasonable trial, or acted as its owner, as by 

 selling it.^^* And where one purchased a horse warranted 

 sound, sold it again and then repurchased it, he cannot, on 

 discovering its original unsoundness, compel the seller to 

 take it back.^'^ But where the horse has been ofifered to the 

 seller and refused, the buyer's right to recover is not affected 

 by his having sold it after the offer.^^* The seller is entitled 

 in all such cases to notice of the failure of the conditions of 

 warranty and the burden is on the purchaser to show such 

 failure."^ 



The sale of a horse under warranty with a provision that 

 the purchaser "can return it" and receive another in exchange 

 was held to entitle the purchaser, upon breach, either to re- 

 tain the horse and recover damages or return him and receive 

 another horse in exchange.-'*'* 



36. Damages on Breach — The measure of damages for the 

 breach of warranty of an animal is the difiference between its 

 actual market value at the time of sale and its value if it had 



™ Moore v. Emerson, 63 Mo. App. 137. 



"° Lyons v. Stills, 97 Tenn. 514. "' Oliph. Horses (sth ed.) 157. 



'" Street v. Blay, 2 B. & Ad. 456. 



"' Buchanan v. Parnshaw, 2 Term 745, where it was held that, where a 

 horse was warranted to be sound and six years old and a condition of 

 sale was that it should be deemed sound unless returned within two days, 

 the latter provision applied only to the warranty of soundness, not to that 

 of age. 



"° Beckett v. Gridley, 67 Minn. 37. 



"" Love V. Ross, 8g la. 400. And see Eyers v. Haddem, 70 Fed Rep 

 648. 



