Page:Halsbury Laws of England v1 1907.pdf/613

 — Part V.

Warranty on Sale of Animals.

849. Unless otherwise expressly

stated, a

391

warranty only relates

p^kt v.

Warranty It may, however, as they are at the time of sale (h). on Sale expressly relate to the future, as where the seller undertakes to deliver horses sound at the end of a fortnight (i) ; but "war- of Animals, ranted sound for one month " has been held to mean not that warranty the horse was warranted to continue sound for a month, but that relating to to facts

the duration of the warranty was limited to one month, and that complaint of unsoundness must be made within one month of sale (j).

850.

A

warranty is an agreement and a breach of it gives

collateral to the

main purpose Kemedy for

damages, ^I'each of ^^^^^^ ^' but not to a right to reject the horse, the sale being a sale of a specific chattel and the property passing to the buyer on the of a sale,

sale

rise to a claim for

(A-).

In the absence of agreement, therefore, the buyer cannot, after the property has passed to him, return a horse to the seller for breach of warranty ® his remedy is either to set up the breach of warranty in diminution or extinction of the price, or to counterclaim or bring an action against the seller for damages for the breach of warranty {m). But if a bill (which includes a cheque or promissory note) be given for the price, and the horse does not answ'or to the warranty, and has not been taken back by the buyer, the breach of warranty cannot be set off by way of diminution of the price the damages being unliquidated and the failure of



consideration partial {n). The measure of damages is prima facie the difference between the value of the horse at the time of delivery and the value it would have had if it had answered to the warranty (o). The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from counter-claiming or maintaining an action for damages in excess arising from the same breach of warranty (^).

Where

there has been a breach of warranty and no agree- Tender of he should tender ^^^^^g^^^^^^^f^ ° it to the seller, and, if the latter refuses to take it back, should ^i-ranty. then sell it ; in which case the original seller is liable for its keep

851.

ment

entitling the purchaser to return the horse,

bad habits whicii have been held to amount to unsoundness or vice, see Oliphant on Horses," oth ed., pp. 66 102. " Vice" means either a defect in the temper of the horse which makes it dangerous or diminishes its usefulness, or a bad habit which is injurious to its health {Scholefield v. llohh (1839), 2 Mood. & E. 210). (A) Liddard v. Kain (1824), 2 Bing. 183; and see Y. B. 11 Edw. 4, 10 B., ^er Choke, J. {i) Liddard Y. Kain, supra; Edeny. Farkison (1781), 2 Dougl. 732. Compare Buchanan v. {j) Chapman v. Gwyther (1866), L. K. 1 Q. B. 463. '

'

—

Parnshaiv (1788), 2

Term Eep.

745.

Sale of Goods Act, 1893 (56 & 57 Yict. c. 71), s. 62 (1). Street v. Blay (1831), 2 B. & Ad. 456 ; ah'ter of a condition (/) Ibid., s. 53 (1) or where there is a fraud. (m) Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), s. 53 (1) (a), (b). By s. 62 (1) " action " includes counterclaim and set-off. {n) Wariuick v. Nairn (1855), 10 Exch. 762 Solomon v. Turner (1815), 1 Stark. 51. (o) Sale of Goods Act, 1893 (56 & 51 Vict. c. 71), s. 53 (2), (3). Street v. Blay, supra; Davis v. Hedges (1871), L. E. 6 Q. B. (p) Ibid., s. 53 (4) 687. (k)