PATENT DEFECTS. 131 



would naturally produce lameness when the horse was put 

 to work (s). 



In a more recent case, in which the defendant sold a 

 horse to the plaintiff with a general written warranty of 

 soundness, but at the same time pointed out a splint which 

 it had, and the horse subsequently became lame from the 

 splint, it was held that the lameness was a breach of the 

 warranty. Pollock, C.B., in his judgment, said, " The rule 

 is asked for on the ground that when you point out a splint 

 to the purchaser, you except it out of the warranty ; it may 

 be so, if the horse be blind, or have any other patent defect, 

 which is to be seen and is clear ; but here it may well be 

 that the defendant warranted that the splint should not 

 grow into a lameness. A person buying a horse is often no 

 judge of horses, and may say, 'I don't want to see the 

 defects or blemishes of the horse, as I really know nothing 

 about them ; I want and must have a written warranty. I 

 do not see why this warranty should not be taken thus : ' I 

 show you this splint, and I warrant the horse perfectly 

 sound notwithstanding.' It may have been excepted in the 

 warranty, but there is no exception at all. I think the 

 defendant is liable on his warranty. Tbis entirely agrees 

 with the decision in Margetson v. Wright (s). Some splints 

 cause lameness and others do not. A splint, therefore, is 

 not one of those patent defects, against which a warranty is 

 inoperative." BramweU, B., in the same case, in giving 

 judgment for the plaintiff based his decision upon the 

 broader ground, that where the warranty is a written one, 

 it cannot be modified by parol evidence to the effect that 

 the defect existed at the time, and was therefore excluded 

 from the warranty {t). 



The conclusion then to be drawn from the cases on Conclusion to 

 this subject appears to be:— that the patent defects, \{^ll^^'"'^ 

 which the warranty does not cover, and to which the doc- 

 trine of caveat emptor applies, must be so manifest and 

 palpable, as to be necessarily within the knowledge and 

 apprehension of the purchaser, and also such defects as at 

 the time of sale either are, or wiU inevitably produce, an 

 unsoundness. And as Mr. Baron Bramwell's opinion, that 

 parol evidence is inadmissible to modify the written war- 

 ranty to the extent of proving the existence of patent defects 



(s) Margetsmy. Wright, 1 M. & [t) Smith t. O'Brien, 11 L. T., 



SCO. 627. N. S. 346. 



K 2 



