132 



warranty; sale and warranty by agent, etc. 



defects. 



Parcliase 



without 



inspection. 



Inspection 

 prevented by 

 Iraud. 



at the time of the warranty being given (u), appears to be 

 well founded, the written warranty must be taken to con- 

 tain all the terms of the contract, and evidence as to patent 

 defects will only be receivable in cases where the warranty 

 is not in writing. 



Where the buyer suspects some defect and wishes tc 

 examine and try the horse for it, but the seller objects and 

 says, " I will warrant him," he is liable for the defect. 

 For where an action on the case was brought when a horse 

 warranted sound had turned out "shoulder-tied," it was 

 contended that an action would not lie, because the defect 

 was visible. But Sir Henry Montague, C.J., said, "This 

 was the ground, that the plaintiff wished to have ridden 

 the horse, but the defendant said ' I will warrant him 

 sound.'" And Noy, J., said, "That is the distinction, 

 where the defect is visible " (x). 



Where there is no opportunity of inspecting the com- 

 modity, the maxim caveat emptor does not apply ; and the 

 intention of both parties must be taken to be, that it 

 shall be saleable in the market under the denomination 

 mentioned between them {y). This has been laid down 

 with regard to horses some centuries ago, for we find in 

 the Year Book it is said by Thirning, J., " If I buy a horse 

 of you in a different place from where the horse is, 

 through the confidence I have in you, and you warrant 

 him sound in all his parts, when he is blind, I shall 

 have a good action of deceit against you " (z). Therefore, 

 at the present day, if A. in London were to buy a car- 

 riage horse of B. in Yorkshire, warranted sound, and the 

 horse on its arrival were found to have some patent 

 defect, such as the want of an ear or tail, A. would not 

 be bound to take it, because being maimed, it could not 

 be said to answer the description of the horse he ordered ; 

 and by taking a warranty he has done everything in his 

 power to protect himself (a). 



In America, a general warranty was held to extend to 

 patent defects, where access to the horse was prevented 

 by the seller by means of a trick, the buyer being un- 



(u) Smith V. O'Brien, 11 L. T., 

 N. S. 346. 



(x) Dorrington v. Mdwards, 2 Eol. 

 188. 



(y) Gardiner v. Oray, 4 Camp. 

 145 ; 16 E. E. 764. 



h) Tear Book, 13 Hen. 4, p. I. 



[a) See Gardiner y. Gray, 4 Camp. 

 145 ; 16 E. E. 764. See also Jones 

 V. Just, L. E., 3 Q. B. 197 ; 37 L. J., 

 Q. B. 89; 18L. T., N. S. 208. 



