100 SALE AND MORTGAGE. 



If the animal is not tendered back to the seller, the pur- 

 chaser cannot recover for the expense of its keep.^** This 

 expense should cover only a reasonable time before resale.^*^ 

 Where the animal is returned the measure of damages is the 

 price paid for it."" And there may be cases where the pur- 

 chaser, without a return, may recover the cost, as where a 

 horse, warranted to be sound and just the kind of animal the 

 purchaser wanted for a driving horse, proved to have an in- 

 curable disease of the feet which rendered him worthless for 

 that purpose.^"^ 



Where the horse was warranted to be kind, it was held in a 

 Massachusetts case that the purchaser could not recover in 

 tort for damages to a wagon and harness in consequence of 

 the breach."^ But in a New York case this case was com- 

 mented on as "not being easy to understand," and it was held 

 that where a horse, warranted to be gentle and kind and suit- 

 able to drive in a light wagon, runs away while being so 

 driven, the warrantor is liable for the loss of the wagon and 

 the buyer's injuries, though the warranty was not fraudu- 

 lently made.^3 On the other hand, it was held in an Ala- 

 bama case that, on the breach of a warranty of gentleness, 

 damages could not be recovered for injuries received by the 

 horse's running away where it was not shown that the seller 

 knew or had reason to believe that he was vicious or unsafe, 



given of their market value in several markets nearest the place where 

 they were lost. 



™ Caswell V. Coare, I Taunt. 566. And see Ford v. Oliphant (Tex. 

 Civ. App.), 32 S. W. Rep. 437; Elwood v. McDill, 105 la. 437. 



""Ellis V. Chinnock, 7 C. & P. 169; Chesterman v. Lamb, 4 N. & M. 

 195; McKenzie v. Hancock, Ry. & Moo. 436; Huston v. Plato, 3 Colo. 

 402. 



"" Caswell V. Coare, I Taunt. 566. 



'" Murphy v. McGraw, 74 Mich. 318. 



"' Case V. Stevens, 137 Mass. 551. 



"' Bruce v. Fiss, Doer & Carroll Horse Co., 26 Misc. (N. Y.) 472,— on 

 the ground that damages to person and property from the horses running 

 away must have been in the minds of the parties as likely to occur if the 

 warranty proved untrue. See, also, Allen v. Truesdell, 135 :\Ia«^ 7? 



