124 waeeanty; sale and warranty by agent, etc. 



sound." Ultimately the horse — which had, at the 

 plaintiff's request, been previously examined by a veteri- 

 nary surgeon, who gave a certificate that it was sound — 

 was purchased by the plaintiff for 315/., which sum he 

 paid to the defendant. The horse, proving to be unsound, 

 was re-sold by the plaintiff, and this action was brought to 

 recover the difference in price. On the part of the defen- 

 dant it was contended that the servant of a horsedealer 

 (assuming David Sheward to have been the defendant's 

 servant for this purpose) has no implied authority to 

 warrant on his master's behalf ; and evidence was offered 

 to show that it was not the custom with horsedealers to 

 warrant where the horse had been examined by a com- 

 petent veterinary surgeon and pronounced sound. Erie, 

 C.J., declined to receive the evidence, and said that he 

 should rule that David Sheward had authority to warrant ; 

 and the jury, finding that he had done so, and that the 

 horse was unsound, returned a verdict for the plaintiff, 

 damages 127/. lO.s., and leave was reserved to the defen- 

 dant to move to enter a nonsuit or for a new trial. The 

 rule was refused. And Willes, J., in the course of his 

 judgment, said, " David Sheward did not negative the fact 

 that this was an ordinary transaction as between his brother 

 and himself It must be assumed, therefore, that he 

 negotiated the sale as his brother's servant or agent. It 

 was not an isolated instance, though if it had been I do not 

 conceive that it would have made any difference ; but it 

 appeared that David Sheward had before assisted the 

 defendant in the sale of horses. Is it, then, part of the 

 business of a horsedealer to warrant horses which he sells ? 

 No doubt it is ^vfhere a sufficient price is given. Upon the 

 whole I think there was clear evidence of authority to 

 warrant. It arose out of the general character of the trans- 

 action, and any person deahng with the agent of a horse- 

 dealer has a right to assume it." 



It was also decided in Howard v. Sheward [q] that evi- 

 dence of the alleged usage amongst horsedealers not to 

 warrant where the horse has been examined by a veterinary 

 surgeon, was not admissible to rebut the inference of 

 authority to warrant. 



But a horsedealer will not be bound by a warranty given 

 by his servant on an incidental matter, especially where the 

 contract is not an ordinary transaction of sale and purchase. 



(2) L. E., 2 C. P. 148. 



