sue on a general warranty of soundness. In the present case, the splint was known to both parties, and the learned judge left it to the jury to say whether the horse was fit for ordinary purposes. His direction would have been less subject to misapprehension if he had left them to consider whether the horse was at the time of the bargain sound, wind and limb, saving those manifest defects contemplated by the parties." On the new trial then ordered, the plaintiff proved, to the satisfaction of the jury, that there were two kinds of splints, some of which cause lameness, and others do not, and that the splint in question did cause a subsequent lameness, and they found that the horse at the time of the sale, "had upon him the seeds of unsoundness arising from the splint." Held, that this result not being apparent at the time, and the buyer not being able to tell whether the splint was one that would cause lameness, was protected by the warranty that the horse was then sound. (1)

§ 618. But in Tye v. Fynmore, (k) where the sale was of "fair merchantable sassafras wood," the purchaser refused to Tve v. take the article, alleging that these words meant in the Fynmore. trade, the roots of the sassafras tree, but that the wood tendered by plaintiff was part of the timber of the tree, not worth more than one sixth as much as the roots. In answer to this it was shown that a specimen of the wood sold was exhibited to the buyer before the sale, and that the buyer was a druggist, well skilled in the article. Lord Ellenborough said: "It is immaterial that the defendant is a druggist, and skilled in the nature of medicinal woods. He was not bound to exercise his skill, having an express undertaking from the vendor as to the quality of the commodity." (1)

(1) See, also, Butterfield v. Burroughs, 1 Salk. 211; Southerne v. Howe, 2 Rolle, 5; 2 Bl. Com. 165, 166.

vendee.

the article purchased, he is fore the
to be considered as having
waived his right to indemnity under the

(k) 3 Camp. 462; [Henshaw v. Robins, warranty. On this question the authori9 Met. 83.] ties are conflicting. But we are of opinion that the examination of the article by the plaintiff, at the time of the sale, is no evidence of his intention to waive any legal right. If the spurious nature of the article might have been detected on inspection, it might have been otherwise; but we must infer, from the instruction of the court, that the jury found that the article was so disguised that the deception could

(1) [Ante, § 429, note (b); Attwood v. Small, 6 Cl. & Fin. (Am. ed.) 233, note (2); First National Bank v. Grindstaff, 45 Ind. 158. In Henshaw v. Robins, 9 Met. 83, 89, which was an action for breach of warranty in a sale of indigo, Wilde J. said: "The plaintiff is, thereImplication fore, entitled to recover, unticle is be- less, by the examination of

when the ar

Meaning of "sound

ness "' in warranty of horses.

Kiddell v.
Burnard.

§ 619. The meaning of the word "sound," when used in the sale of horses, has been the subject of several decisions, and it is settled that the interpretation of a warranty to that effect depends much on custom and usage, as well as upon the circumstances of the particular case. The rule was fully considered in Kiddell v. Burnard. (m) A verdict was given at nisi prius in favor of the plaintiff, who had purchased, with a warranty of soundness, some bullocks at a fair. The learned judge (Erskine J.) told the jury that the plaintiff was bound to show that at the time of the sale the beasts had some disease, or the seeds of some disease (n) in them, which would render them unfit, or in some degree less fit, for the ordinary use to which they would be applied. On the motion for new trial, Parke B. said: "The rule I laid down in Coates v. Stevens (0) is correctly reported, and I am there stated to have said I have always considered that a man who buys a horse warranted sound must be taken as buying him for immediate use, and has a right to expect one capable of that use, and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is, that if at the time of the sale the horse has any disease, which either does diminish the natural usefulness of the animal so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, or if the horse has either from disease or accident undergone any alteration of structure, that either actually does at the time, or in its ordinary effects will, diminish the natural usefulness of the horse, such horse is unsound. (p) If the cough actually existed at the time of the sale

not have been detected by a skilful dealer in indigo, without resorting to an analytical experiment, so that no neglect can be imputed to the plaintiff in not making a careful experiment." But the law will not permit a purchaser, having the property before him, and defects in it plainly discoverable, to shut his eyes and ears, and omit to use his senses, and pretend that he relied on the representations made by the vendor, and was thereby misled. Vandewalker v. Osmer, 65 Barb. 556, 561.]

(m) 9 M. & W. 668; and see Holli

day v. Morgan, 1 E. & E. 1; 28 L. J. Q. B. 9.

(n) [Woodbury v. Robbins, 10 Cush. 520; Stephens v. Chappell, 3 Strobh. 80.]

(0) 2 Moo. & Rob. 157.

(p) [Roberts v. Jenkins, 21 N. H. 116, 119, 120; Kornegay v. White, 10 Ala. 255; Burton v. Young, 5 Harr. 233; Brown v. Bigelow, 10 Allen, 244, 245 ; Hook v. Stovall, 21 Ga. 69; Crouch v. Culbreath, 11 Rich. 9; Woodbury v. Robbins, 10 Cush. 520; Fondren v. Durfee, 39 Miss. 324.]

as a disease, so as actually to diminish the natural usefulness of the horse at that time, and to make him less capable of immediate work, he was then unsound; (9) or if you think the cough, which, in fact, did afterwards diminish the usefulness of the horse, existed at all at the time of the sale, you will find for the plaintiff. I am not now delivering an opinion formed at the moment on a new subject; it is the result of a full previous consideration.' That is the rule I have always adopted and acted on in cases of unsoundness, although in so doing I differ from the contrary doctrine laid down by my brother Coleridge in Bolden v. Brogden." (r) All the judges, Alderson, Gurney, and Rolfe BB., concurred in this exposition, the first named saying: "The doctrine laid down by my brother Parke to-day, and in the case of Coates v. Stevens, is not new law: it is to be found recognized by Lord Ellenborough (8) and other judges in a series of cases." In Bolden v. Brogden, (r) which it is submitted was overruled in Kiddell v. Burnard, Coleridge J. had told the jury that the question on such a warranty was whether the animal had upon him a disease calculated permanently to render him unfit for use, or permanently to diminish his usefulness. (t)

Bolden r.

Brogden by Kiddell

overruled

v. Burnard.

which have

been held

to consti

tute un

§ 620. It may be convenient to state some of the defects which have been held to constitute unsoundness. Any organic Defects defect, such as that a horse had been nerved; (u) bonespavin in the hock; (x) ossification of the cartilages; (y) the navicular disease (z) and thick wind (a) have been soundness. held to constitute unsoundness in horses, and goggles in sheep. (b) But roaring has been held not to be, (c) and in a later case to be, (d) unsoundness. Crib-biting (e) has been held to be not un

(q) [See Roberts v. Jenkins, 21 N. H. 116; Kornegay v. White, 10 Ala. 255; Tatum v. Mohr, 21 Ark. 349; Thompson v. Bertrand, 23 Ib. 730; Merrick v. Bradley, 19 Md. 50.]

(r) 2 Moo. & Rob. 113.

(s) Elton v. Brogden, 4 Camp. 281; Elton v. Jordan, 1 Stark. 127.

(t) See, also, Onslow v. Eames, 2 Stark. 81; Garment v. Barrs, 2 Esp. 673, which seem also to be overruled by Kiddell v. Burnard.

(u) Best v. Osborne, Ry. & Moo. 290.

(x) Watson v. Denton, 7 C. & P. 85. (y) Simpson v. Potts, Oliph. Law of Horses, 224.

(z) Matthews v. Parker, Oliph. Law of Horses, 228; and Bywater v. Richardson, 1 Ad. & E. 508.

(a) Atkinson v. Horridge, Oliph. Law of Horses, 229.

(b) Joliff v. Bendell, Ry. & Moo. 136. (c) Bassett v. Collis, 2 Camp. 523. (d) Onslow v. Eames, 2 Stark. 81. (e) Bronnenburgh v. Haycock, Holt N. P. 630.

soundness, but to be covered by a warranty against vices. (†) Mere badness of shape that is likely to produce unsoundness, and which really does produce unsoundness, is not a breach of warranty of soundness if the unsoundness does not exist at the time of the sale. As where a horse's leg was so ill-formed that he could not work for any length of time without cutting, so as to produce lameness; (g) or had curby hocks, that is, hocks so formed as to render him very liable to throw out a curb, and thus produce lameness; (h) or thin-soled feet, also likely to produce lameness. (i) But a horse may have a congenital defect, which, in itself, is unsoundness. In Holliday v. Morgan (k) a Morgan. horse sold with a warranty of soundness had an unu- · sual convexity in the cornea of the eye, which caused short-sightedness and a habit of shying. The direction to the jury was, that "if they thought the habit of shying arose from defectiveness of vision, caused by natural malformation of the eye, this was unsoundness. All the judges held this direction correct, and concurred in the doctrine of Kiddell v. Burnard, (1) that the true test of unsoundness is, as expressed by Hill J., "whether the defect complained of renders the horse less than reasonably fit for present use." (11)

Holliday v.

§ 621. Where the written sale contains no warranty, or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter, by

Parol evidence inadmissible to prove

(f) Scholefield v. Robb, 2 Moo. & Rob. 210. [See Dean v. Morey, 33 Iowa, 120.] (g) Dickinson v. Follett, 1 Moo. & Rob.

299.

(h) Brown v. Elkington, 8 M. & W.

132.

(i) Bailey v. Forrest, 2 C. & K. 131.
(k) 1 E. & E. 1; 28 L. J. Q. B. 9.
(l) 9 M. & W. 668.

(1) [In Washburn v. Cuddihy, 8 Gray,
430, it was held that crib-biting, affecting
the health and condition of
Unsound-
ness in
the horse, so as to render him
horses.

less able to perform service and of less value, is unsoundness. See Paul v. Hardwick, sittings at Westminster H. T. 1831, cited 1 Chitty Contr. (11th Am. ed.) 655, note (r). In Walker v.

Halsington, 43 Vt. 608, a horse was warranted "sound and right," but he proved to be a "cribber." The court said: "Perhaps this horse was physically sound although he was what is called a cribber, and perhaps not; as to that we make no decision and express no opinion, but the warranty was as to more than soundness, it was that the horse was sound and right. A fair interpretation of this warranty would make it mean that the horse was right in conduct and behavior- as to all matters materially affecting its value, as well as in physical condition." Whether corns in a horse's feet constitute a breach of warranty of soundness is a question of fact for the jury. Alexander v. Dutton, 58 N. H. 282.]

inference or implication. (m) In Kain v. Old, (n) the bill of sale in the usual form contained no warranty that the vessel sold was copper-fastened; there had been a previous written representation by the vendor that she Old. was copper-fastened. Held that this prior representation formed no part of the contract, and was not a warranty. Abbott C. J. thus expounded the law: "Where the whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract, though not always; because matter talked of at the commencement of a bargain may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writ