112 



■WARRANTY; SALE AND WARRANTY BY AGENT, ETC. 



Where per- 

 formance of 

 condition 

 impossible - 



A special 

 warranty. 



The purchaser, however, may return the horse at any- 

 time within that specified in the conditions of sale, even 

 though he has notice of the breach of warranty before he 

 removes the horse, and the horse, through an accident 

 having happened to it whilst it was in his possession, but 

 not by his default, becomes depreciated in value ( p). 



But the mere fact of the contract of sale containing a condi- 

 tion for the return of the horse within a specified short time, 

 in the event of its not answering the warranty given, will not 

 deprive the buyer of his remedy for the breach, if the per- 

 formance has become impossible without any fault on the 

 part of the seller [q). 



Where a horse was sold by auction at a repository 

 warranted quiet to ride, and one of the conditions of the 

 contract was to the effect that if the buyer contended that 

 the horse did not correspond with the warranty it must be 

 returned on the second day after the sale, and that the non- 

 return within the time limited should be a bar to any claim 

 on account of any breach of warranty ; and the horse was 

 removed by the buyer, and while being ridden on the next 

 day, ran away, fell, and was so injured that it could not 

 safely be returned on the second day after the sale, but the 

 buyer gave notice to the seller on that day that the animal 

 was not according to the warranty, and was unfit to travel ; 

 it was held that under these circumstances the non-return 

 of the horse within the period stipulated by the condition 

 was no bar to an action for breach of warranty ; Lord 

 Coleridge, L.C.J., saying that, " the condition as to the return 

 of the horse was subject to the well-known rule that such 

 agreements imply the continued existence of the subject- 

 matter of the agreement. The result of the accident was 

 to disable the animal so completely as to destroy it as a 

 horse for all purposes of draught or riding " (r). 



When there is any suspicious place apparent to the 

 parties, which they discuss, or if the seller knows of some 

 defect and does not wish to answer for any unsoundness 

 which may proceed from it, he should give a warranty 

 specially excepting his liability for any unsoundness which 

 may proceed from the defect in question (s) ; or expressly 



(p) Head T. Tattersall, L. R. 7 

 Ex. 7; 41 L. J., Ex. i; 25 L. T., 

 N. S. 631. See, in America, Carter 

 V. Wallace, 35 Hun. 189 ; Sunt v. 

 Wyman, 100 Mass. 198. 



Iq) Taylor v. Caldwell, 3 B. & S. 



826. See also s. 7 of the Sale of 

 Goods Act, 1893, ante, p. 110. 



()•) Chapman T. Withers, 20 Q. B 

 D. 824; 57 L. J., Q. B. 457; 37 

 W. R. 29. 



(s) Jones V. Cowley, 4 B. & C. 



