Breach. Qualification as to TIME. her" with all faults," it was held nevertheless that the vendor was liable on his warranty, the vessel being proved to be only partially copper-fastened (d); since the agreement to take a chattel" with all faults" must be understood to mean, with all faults which it may have consistently with its being the thing described (e). Again, where the vendor has expressly restricted his liability on his warranty, to a certain period of time, he will be discharged after such period has elapsed; as, where on the sale of a horse a warranty of soundness is given, to continue in force for twenty-four hours only (f), or, until a reasonable trial has been exercised by the purchaser (g). In the absence, however, of such a limitation, the vendor will be liable at any time after the sale, provided that the unsoundness existed, though undetected, at the time of the warranty (h). And if the vendor relies on a condition restricting the time of taking advantage of the breach, he must give specific proof to this effect (i), and that the (d) Shepherd v. Kain, 5 B. & A. 240. (e) 5 B. & A. 241.-Supra. (f) Bywater v. Richardson, 1 Ad. & Ell. 508, 514. See 3 Esp. 271. (g) Adams v. Richards, 2 H. Bl. 573. (h) See 8 Bingh. 454; Ry. & Moo. 137, 8. It is sufficient to charge the vendor if the cause existed at the time of the bargain; see below, p. 359, n. (i) Buchanan v. Parnshaw, 2 T. R. 745. condition was part of the sale (k), and that the Breach. plaintiff had notice thereof (/). Although the vendor is not liable on a general warranty for defects arising subsequently, and not existing at all at the time of the sale (m), yet it would seem that a liability may arise upon a warranty, which, by express agreement, is prospective, and contemplates defects not in esse at the time of the contract (n). 2. Implied Qualification. qualifica fects. A general warranty will not be held to extend Implied to defects or blemishes visible to a common ob- tion. server. Tindal C. J. observed, that "the older Visible debooks lay it down, that defects apparent at the time of the bargain are not included in a warranty however general, because they can form no subject of deceit or fraud; and originally the mode of proceeding on a breach of warranty was by an action of deceit grounded on a supposed fraud: a party, therefore, who should buy a horse, knowing it to be blind in both eyes, could not sue on a k) Best v. Osborne, 2 C. & P. 74; S. C. 1 Ry. & Moo. 296; 1 C. & P. 632. (1) See 1 Ad. & Ell. 508, 510; Mesnard v. Aldridge, 3 Esp. 271. (m) Bluett v. Osborne, 1 Stark. N. P. C. 384; Geddes v. Pennington, 5 Dow, 160, 164; Eaves v. Dixon, 2 Taunt. 343; see 8 Bingh. 457. (n) See above, p. 339. A A Breach. general warranty of soundness" (o). Thus, where a visible defect was disclosed to the plaintiff at the time of the contract, and was the cause of a material reduction of the price set upon the chattel, it was held that this could not be included in a general warranty of soundness (p). The ground of this decision, and of the generai doctrine, seems to be, that, where the defect is patent, the buyer is presumed to have been aware of it, unless the contrary appear, and therefore that it cannot be intended that such defect was meant by the parties themselves to be included in the warranty (q); not that the vendee is barred on account of his own laches in neglecting to examine and ascertain whether such obvious defect existed. Accordingly, where the plaintiff declared on a warranty that the horse sold by the defendant should be sound wind and limb, and averred that the horse had but one eye &c., and it was objected in arrest of judgment that the want of an eye was a visible thing, whereas the warranty extended only to secret infirmities, the Court nevertheless gave judgment for the plaintiff, because the jury had found that the defendant did warrant (r). (0) 7 Bingh. 605; and see Dyer v. Hargrave, 10 Ves. Jun. 507, per Sir W. Grant, M. R. (p) Margetson v. Wright, 5 M. & Payne, 606, S. C. 7 Bingh. 603. (9) See 2 Stark. Ev. 905, note (u), (2nd Ed.). Again, where the peculiar circumstances of the Breach. case remove the presumption of knowledge on the part of the buyer, a defect, though otherwise visible and obvious, would be held to be included in the general warranty. Thus, it is said in the Year-Books, that, although the defect be apparent, as that a horse warranted perfect wants an eye, this does not discharge the seller, if the purchaser also be blind(s); so, if the horse be bought without being exhibited to the purchaser(t). And the defect must be immediately obvious to common observation, not such as requires particular investigation to discover. Thus, "if cloth be warranted of such a length, when it is not, there an action on the case lies for damages; for that cannot be ascertained by sight, but only by collateral proof, viz. the measuring it "(u). So, where there is at the time of the sale a patent defect, such that it may be the possible cause of a subsequent unsoundness, such unsoundness will be held to have been included in the warranty. Thus, (s) Vin. Abr. Actions (A. c.) 7. See Bro. Abr. Disceit, pl. 29, citing 11 E. 4. 6—" Per Fairfax ; if a man sells cloths of a murrey colour, and warrants that they are blue, it is a void warranty; for it is apparent by the view. But per Brian; if the vendee be blind, in such case disceit lies." (t) 2 Stark. Ev. 905, note (u), (2nd Ed.). (u) 3 Bl. Com. 465. So, it is laid down in Vin. Abr. Actions (Z. b.) 15. "If one sells a horse that is blind and warrants him to be sound, no action lies, because the purchaser may see whether he be blind or not; but otherwise where he has a disease in the eye which cannot easily be discerned." Breach. Warranty of horse. where in the sale of a horse it was disclosed to the plaintiff at the time of the contract that the animal had a "splint," and on the trial it appeared in evidence that some splints occasion lameness, and others do not, so that the purchaser cannot be certain at the time whether lameness will be the necessary consequence,-it was held, that a lameness subsequently arising from the splint, was a breach of a general warranty of soundness (r). II. Extent-Particular Breach- Warranty of a As many questions, necessarily inapplicable to the subject of general warranty, arise in respect of warranties in sales of horses, this particular subject may be separately considered. The plaintiff must prove positively that the horse was unsound at the time of the sale; it is not sufficient to give such evidence as to induce a mere suspicion of unsoundness (y). The question of soundness or unsoundness is a question peculiarly fit for the consideration of a jury; and the (x) Margetson, v. Wright, 8 Bingh. 454. S. C. 1 M. & Scott, 622. See an old case similar in circumstances, Dorrington v. Edwards, (2 Roll. Rep. 188; S. C. Vin. Abr. Actions [Z. b.] 14.) "If a horse be sold warranted sound, whereas he is shoulderpitched and has splints upon his legs, an action lies; for these imperfections are not subject to the view without some skill.” (y) Eaves v. Dixon, 2 Taunt. 343. |