108; Shepherd v. Pybus, 3 M. & Gr. 868; even though the sale be by sample; Mody v. Gregson, L. R., 4 Ex. 49, Ex. Ch.; see Macfarlane v. Taylor, L. R. 1 H. L. Sc. 245. A manufacturer of goods, who is not a dealer, warrants that such goods are made by him. Johnson v. Raylton, 7 Q. B. D. 438, C. A. 6thly. Where the contract is to supply goods of a specified description, which the buyer has had no opportunity of inspecting, the goods must not only, in fact, answer the specific description, but, must also be merchantable or saleable under that description. Bigge v. Parkinson, 7 H. & N. 955; 31 L. J., Ex. 301; Gardiner v. Gray, 4 Camp. 144; Jones v. Just, L. R., 3 Q. B. 197; see also Mody v. Gregson, supra. And, even although the buyer has inspected the bulk, the goods must answer the specified description. Josling v. Kingsford, 13 C. B., N. S. 447; 32 L. J., C. P. 94.

By the Merchandise Marks Act, 1862 (25 & 26 Vict. c. 88), ss. 19, 20, on the sale or contract to sell (whether in writing or not) any article with any trade mark on it, or on what it is contained in, or with any description or indication of the number, quality, measure, or weight, or of the place where it was manufactured or produced, there shall be deemed to have been a warranty of the genuineness of the trade mark, or of the truth of the description, &c., unless the contrary shall have been expressed in writing, signed by or on behalf of the vendor, and delivered to and accepted by the vendee, And by sect. 22, cited sub tit. Action for infringement of Trade Marks, post, a right of action is specially given to every person aggrieved by the forging or improper use of trade marks..

Remedy where there is a warranty.] Where a horse or other article has been sold warranted, but is in fact not according to the warranty, the purchaser may of course maintain an action upon the warranty; but, in some cases he may rescind the contract, and recover the money paid under a claim for money had and received: as, where by the contract the purchaser has the power of returning the article, if not approved; Towers v. Barrett, 1 T. R. 133; or, where the contract is rescinded with assent of the defendant; per Buller, J., Ib.; and, the article is returned within a reasonable time; Compton's case, cited by Buller, J., in 1 T. R. 136; Adam v. Richards, 2 H. Bl. 573; Street v. Blay, 2 B. & Ad. 456; and, in the same state as sold, and without using the thing sold after the discovery of the breach; Harnor v. Groves, 15 C. B. 667 ; 24 L. J., C. P. 53; Curtis v. Hannay, 3 Esp. 82.

But, on the purchase of a specific chattel, it is only where there is a condition in the contract authorising the return, or the vendor has received back the horse or other article, and has thereby rescinded the contract, or has been guilty of a fraud which avoids the contract altogether, that the purchaser may thus recover back the price; Street v. Blay, 2 B. & Ad. 462, and the cases there cited; Gompertz v. Denton, 1 Cr. & M. 207. Where there is a breach of warranty and no condition for rescinding the sale, the vendee must keep the article and rely upon a cross action, or counter-claim, or prove the breach in reduction of damages when sued for the price. Street v. Blay, supra; Poulton v. Lattimore, 9 B. & C. 259; Dawson v. Collis, 10 C. B. 523; 20 L. J., C. P. 116.

If the purchaser sue upon the warranty, he need not return the article sold. Fielder v. Starkin, 1 H. Bl. 17; Pateshall v. Tranter, 3 Ad. & E. 103.

Proof of the sale and warranty.] Where there is no written contract, and the warranty is, (as it often is,) mentioned in the receipt for the purchasemoney, the sale and warranty may be proved by the production of the receipt without an agreement stamp. Skrine v. Elmore, 2 Camp. 407.. A sale for the price of 10l. and upwards is within the Stat. of Frauds, s. 17;

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but, as the breach of warranty is not usually discovered till after delivery and acceptance of the goods sold, the statute is then complied with, and the contract may be proved by oral evidence.

The plaintiff must in general prove an express warranty; a high price is not tantamount to an implied warranty. Stuart v. Wilkins, 1 Doug. 20; Parkinson v. Lee, 2 East, 322. The word "warranty" is not essential; but, there may be a mere misrepresentation or opinion of the seller without any intention on either side to give or require a warranty, and this will be a question for the jury. Generally, however, a representation made at the sale is part of the contract, and equivalent to a warranty. Wood v. Smith, 5 M. & Ry. 124; Salmon v. Ward, infra. But, not if the contract be reduced into writing. Pickering v. Dowson, 4 Taunt. 779. But, where the evidence of the contract of sale consists of a series of letters which are ambiguous in their terms on the question of warranty, oral evidence of all the surrounding facts and circumstances of the sale is admissible, for the purpose of showing that a warranty was not contemplated between the parties. Stucley v. Baily, 1 H. & C. 405; 31 L. J., Ex. 483. A mere invoice describing articles sold does not amount to a warranty of quality. Rook v. Hopley, 3 Ex. D. 209. On the sale of pictures, with a bill of parcels having the artist's name attached, it is for the jury to find whether the seller has guaranteed that they are really the works of the artist, or merely intimated his opinion as to the authorship. Power v. Barham, 4 Ad. & E. 473. A., a corn-dealer, sold to B., another corn-dealer, some barley as "seed barley," just before bought by sample from a third person. B. knew that A. had so bought it by sample as "seed barley," and that he had not seen it in bulk held, that this was not evidence of a warranty, but was a mere expression of A.'s belief. Carter v. Crick, 4 H. & N. 412; 28 L. J., Ex. 238.

Where the plaintiff wrote to the defendant, "You will remember that you warranted a horse as a five-year old," &c., to which the defendant answered, "The horse is as I represented it," it was ruled that this was evidence of a warranty at the time of sale. Salmon v. Ward, 2 C. & P. 211. Where the seller said, "The horse is sound to the best of my knowledge, but I will not warrant it,” and the seller knew it to be unsound, he was held answerable on this qualified warranty, viz., that "it was sound to the best of his knowledge." Wood v. Smith, supra. But quære; for this seems to be rather a case of fraud than of qualified warranty. Where the warranty was "To be sold, a black gelding, five years old; has been constantly driven in the plough. Warranted," this was held to be only a warranty of soundness. Richardson v. Brown, 1 Bing. 344. So, "Received of B. 10l., for a grey four-year old colt, warranted sound," is not a warranty of age. Budd v. Fairmaner, 8 Bing. 48. Where there is a manifest defect, a general warranty of soundness will not be deemed to extend to it. Margetson v. Wright, 7 Bing. 603. A splint has been held not to be such a manifest defect; S. C., 8 Bing. 454; nor convexity of the cornea of the eye; Holliday v. Morgan, 1 E. & E. 1; 28 L. J., Q. B. 9. When a horse is sold with a warranty, by private sale at a repository for the sale of horses, where the terms of the sales are painted upon a board fixed up in a conspicuous situation, a purchaser must be taken to be cognizant of those terms, though nothing is said respecting them, at the time of sale; and if one of the terms is that the warranty of soundness should remain in force until noon next day, unless in the meantime notice of unsoundness should be given by the purchaser, it must be complied with, though the unsoundness is of such a nature as may not be discovered within that time. Bywater v. Richardson, 1 Ad. & E. 508. So, where the condition was that a horse not answering the warranty must be returned before a given time after the sale. Hinck

cliffe v. Barwick, 5 Ex. D. 177, C. A. So, where a horse was "warranted sound for one month," it was held that the complaint of unsoundness must be made within one month of the sale. Chapman v. Gwyther, L. C., 1 Q. B. 463. The buyer has, however, that time within which to return the horse, though the purchaser had notice of the breach of warranty before he removed the horse, and the horse through an accident became depreciated in value. Head v. Tattersall, L. R., 7 Ex. 7. So, although the horse, without default of either party, die before the time has elapsed. See Elphick v. Barnes, 5 C. P. D. 321. There are many cases on variances upon warranty of soundness, but the power of amendment makes it needless to notice them.

As to when a warranty arises by implication of law, vide ante, pp. 436, 437.

Warranty by agent.] A servant employed to sell a horse has been held to have an implied authority to warrant; Alexander v. Gibson, 2 Camp. 555 (the case of a sale at a fair); and, even where the servant of a horse-dealer has express directions not to warrant, but does warrant, the master is bound, unless he has notified to the world that the general authority is limited; per Bayley, J., in Pickering v. Busk, 15 East, 45; Helyear v. Hawke, 5 Esp. 72; Howard v. Sheward, L. R., 2 C. P. 148. But, the doctrine has, according to some authorities, been confined to the case of sales by servants of horsedealers, who may be supposed to possess a general authority; Scotland, Bank of, v. Watson, 1 Dow, 45; Fenn v. Harrison, 3 T. R. 760, per Ashhurst, J.; Anon., cited 15 East, 407; and, it has been decided that the servant of an owner, not a horse-dealer, entrusted on one particular occasion to sell and deliver a horse, is not by law authorised to bind his master by a warranty; and the buyer, taking a warranty from such an agent, takes it at the risk of being able to prove that he had the principal's authority. Brady v. Todd, 9 C. B., N. S. 592; 30 L. J., C. P. 223. Quære, Whether, in the case of a foreman, alleged to be a general agent, or such a special agent as a person entrusted with the sale of a horse at a fair or other public mart, the authority would be implied; S. C., per curiam; semble, per Ashhurst, J., in Fenn v. Harrison, supra, that in the latter case it would not. What is said at the time of the sale is evidence, and may amount to a warranty; per curiam, Brady v. Todd, supra. If the seller repudiates the warranty made by his agent there is no sale; per curiam, S. C. Where the horse had been already sold, and the vendor's servant, on delivering him to the purchaser, made certain statements, and signed a receipt for the price containing a warranty, it was held that the vendor was not bound by such statements, nor, by the receipt, no express authority to warrant being shown. Woodin v. Burford, 2 Cr. & M. 391. Where the plaintiff wrote to the defendant, referring to the warranty and alleging a breach of it, and the defendant in reply denied that there had been any breach, it was held that the jury were justified in finding a warranty on this evidence. Miller v. Lawton, 15 C. B., N. S. 834.

Breach of warranty.] If the breach be denied, the plaintiff must give positive proof of unsoundness, &c., at the time of the sale; a suspicion that a horse was unsound is not sufficient. Eaves v. Dixon, 2 Taunt. 343. The term "sound," in the case of a horse, implies the absence of disease, or the seeds of a disease, which impairs the natural usefulness of the animal. Kiddell v. Burnard, 9 M. & W. 668. An infirmity, as a temporary lameness, which renders a horse less fit for present use, though not of a permanent nature, and though_removed after action brought, is an unsoundness. Per Ld. Ellenborough, Elton v. Brogden, 4 Camp. 281; 1 Stark. 127. A cough,

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though not permanent, is therefore an unsoundness. Coates v. Stephens, 2 M. & Rob. 157; Shillitoe v. Claridge, 2 Chitty, 425. But see Garment v. Barrs, 2 Esp. 673, where Eyre, C. J., held that a horse, labouring under a temporary injury or hurt, is not an unsound horse. Roaring is not, it is said, necessarily an unsoundness, unless symptomatic of disease; Bassett v. Collis, 2 Camp. 523; but, if it is of such a nature as to incommode the horse when pressed to his speed, it is an unsoundness; Onslow v. Eames, 2 Stark. 81. Mere badness of shape (such as may produce cutting or curbs) is not unsoundness; Dickinson v. Follett, 1 M. & Rob. 299; Brown v. Elkington, 8 M. & W. 132; but, any defect in the structure of a horse, congenital as well as arising from subsequent disease or accident, which diminishes his natural usefulness and renders him less than reasonably fit for present use, is unsoundness; and convexity in the cornea of the eye, making the horse shortsighted, and so inducing a habit of shying, is such a defect; Holliday v. Morgan, 1 E. & E. 1; 28 L. J., Q. B. 9. A nerved horse is unsound. Best v. Osborne, Ry. & M. 290. Crib-biting is not unsoundness, but vice. Scholefield v. Robb, 2 M. & Rob. 210. Whether thrushes, splints, or quidding be unsoundness, is a disputed question ; Bassett v. Collis, 2 Camp. 524, n. ; but a splint which produces lameness is an unsoundness, even before the lameness is produced; Margetson v. Wright, 8 Bing. 454. So, a bone spavin. Watson v. Denton, 7 C. & P. 85. A chest-foundered horse is unsound. Atterbury v. Fairmanner, 8 B. Moore, 32. Proof that a horse is a good drawer will not satisfy a warranty that he is "a good drawer, and pulls quietly in harness." Coltherd v. Puncheon, 2 D. & Ry. 10.

It need not be averred, nor if averred, proved, that the defendant knew of the unsoundness. Williamson v. Allison, 2 East, 446.

Damages.] If a horse has been returned, the plaintiff will be entitled to recover the whole price; if kept, the difference between the real value and the price; or the plaintiff may sell the horse for what he can get, and recover the residue of the price paid, in damages. Caswell v. Coare, 1 Taunt. 566. If the horse is not tendered to the vendor, the vendee can recover no damages for the expense of his keep. S. C. But, if the vendee had tendered the horse, he may recover for the keep, for such time as would be required to sell him to the best advantage. M'Kenzie v. Hancock, Ry. & M. 436. So, where after notice, to the vendor that the horse might be taken away, it was resold, the vendor is liable for the keep for a reasonable time, which is a question for a jury. Chesterman v. Lamb, 2 Ad. & E. 129. Where the vendor rescinded the contract, it was held that he was liable for the keep of the horse from the time of the contract. King v. Price, 2 Chitty, 416. Where defendant warranted a horse to plaintiff, who resold him with a warranty to C., and the horse proving unsound, C. sued the plaintiff, and he gave notice to the defendant of the action, and offered him the option of defending it, but receiving no answer, he defended the action and failed; it was held that defendant was liable, in an action on the warranty, for the costs of the action brought by C. against the plaintiff. Lewis v. Peake, 7 Taunt. 153; and see Rolph v. Crouch, L. R., 3 Ex. 44. In Cox v. Walker, 6 Ad. & E. 523, n., the plaintiff had bought a horse of the defendant for 100l., and had been offered 1401. for him, but the horse proving unsound, plaintiff had been obliged to give up the bargain and to sell it for 491. 78. Ld. Denman, C. J., directed the jury that the plaintiff was entitled to recover the difference between the price at which he had sold and the actual value of the horse, if it had been sound at the time of such sale; and he left to the jury as a measure of such value, the price offered for the horse while in the plaintiff's hands. This ruling was questioned, but the case stood over, after argument, for several terms, and was then compromised. The liability of plaintiff for the breach

of warranty, given on a resale by him, may be alleged and proved as special damage, though the plaintiff had not actually paid the sub-vendee his demand. Randall v. Raper, E. B. & E. 84 ; 27 L. J., Q. B. 266. See also Josling v. Irvine, 6 H. & N. 512 ; 30 L. J., Ex. 78. Where the defendants broke a warranty in not sending hemp that was merchantable, the measure of damages was held to be the difference between what the hemp was worth when it arrived, and what the same hemp would have realised, if it had been shipped in a proper state. Jones v. Just, L. R., 3 Q. B. 197. Where the defendant sold a diseased cow to a farmer, warranting that she was free from disease, he was held liable for the value of other cows of the plaintiff which died of the disease, caught from her, if he knew, at the time of the sale, that the plaintiff was a farmer, and might place the cow with others; Smith v. Green, 1 C. P. D. 92; for the defendant is liable, for such damages, as are the natural consequence of the breach of warranty; S. C., Randall v. Newson, 2 Q. B. D. 102, C. A.

In an action for breach of contract on the sale of food or drugs, the plaintiff may, under the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 28, recover, as damages, any penalty in which he may have been convicted under the act in respect of these goods, and the costs paid and incurred by him, if he prove that he innocently sold the goods as he purchased them from the defendant; but the defendant may in answer prove that the conviction was wrong and the costs excessive.

As to damages recoverable on breach of warranty of authority, vide infra.

Action on Warranty of Authority.

Where A. contracts on behalf of B. as his agent, but without authority from B., A. is in general not liable as principal; Jenkins v. Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 18 Q. B. 503; 21 L. J., Q. B. 311; unless, he was such in fact; Carr v. Jackson, 7 Exch. 382 : 21 L. J., Ex. 137; or, unless B. has no existence. Kelner v. Baxter, L. R., 2 C. P. 174. See further ante, pp. 87, 88. It is, however, now settled that A., by contracting with C. on behalf of B., impliedly warrants that he has authority from B. to enter into the contract; and if he has not such authority he is liable for a breach of the warranty. Collen v. Wright, infra; Ex. pte. Panmure, post, p. 443; and, is bound as far as damages will do it, to place C. in the same position as if he had the authority. S. C. See also judgments Dickson v. Reuter's Telegram Co., 3 C. P. D. 1, C. A. Other cases decided on a similar principle will be found cited below, and these settle the measure of damages applicable to such actions. Thus, if A., bona fide, but falsely, represent to the plaintiff that he is authorised by B. to order goods, and the plaintiff fail in the action against B. for want of such authority, he may recover the value and the costs of the former action in an action against A. Randell v. Trimen, 18 C. B. 786; 25 L. J., C. P. 307. So, where the defendant's testator, as agent for G., had let land without authority, he was held liable for breach of warranty that he had authority; and in the damages were included the costs of an unsuccessful chancery suit against G. Collen v. Wright, 8 E. & B., 647; 27 L. J., Q. B. 215, Ex. Ch. In a similar action it was held that the proper measure of damages was the value of the term agreed for, and the costs of an abortive chancery suit, but not damages and costs the plaintiff had been compelled to pay to a third person, for the breach of an agreement for a sub-lease of the premises. Spedding v. Nevell, L. R., 4 C. P. 212. See also Simons v. Patchett, 7 E. & B. 568; 26 L. J., Q. B. 195; Hughes v. Græme, 33 L. J., Q. B. 335. F. agreed to sell the plaintiff an estate, representing that he had authority from his co-owners so to do; and, on the co-owners repudiating the contract, the plaintiff sued them for breach thereof, and continued his action after