by R S Surtees
I cannot help mentioning a system which is becoming pretty general in London, of gentlemen submitting their horses to the inspection of a veterinary surgeon to decide on their soundness; the usual and equitable terms of which are, that the purchaser shall pay the fee if the horse is pronounced sound, and the intended seller in cases where he is rejected.
A qualified warranty, as I said before, warrants a horse to be sound, with the exception of certain ills or injuries which are specifically pointed out, or named, at the time of sale — as in the case of Jones against Cowley, where the latter warranted a horse to be sound everywhere except a kick on the leg; which was held by the Court of King’s Bench to be a qualified and not a general warranty.
In like manner any other exception can be made, as “warranted sound and without blemish except a thrush or broken knee.” And as it is very desirable, in all transactions between man and man, that every circumstance which might raise a doubt should be avoided, the exceptions should be inserted in the body of the warranty.
In the wording of the warranty it is also desirable to guard against ambiguity.
In a case of Richardson against Brown, where the warranty given on the sale of a horse was contained in a notice in these terms “To be sold, a black gelding, five years old: has been constantly driven in the plough — warranted The Court decided that the warranty applied only to the soundness.
But in another case of Coltherd against Puncheon, proof that a horse was a “good drawer” only, was not held to satisfy a warranty that he was “a good drawer, and pulled quietly in harness.”
However, some horses, when they change their masters, frequently undergo a great alteration; and a horse that has been perfectly docile in the hands of one man may become completely unmanageable in the possession of another.
If, therefore, the change can be shewn to have taken place subsequently to the purchase, and that the horse was quiet before, it will not invalidate the transaction; for, though a man sells a horse to another, it does not follow that he is to turn riding-master, and teach the purchaser to manage him.
In the case of Geddes against Pennington, where the action was brought on a warranty of a horse “thorough broke for gig or saddle,” which was proved to be true, and that his bad demeanour in the hands of the purchaser was owing to his want of skill in driving, the Court refused to rescind the contract, notwithstanding there were real circumstances of misrepresentation attending it.
As the warranty (whether general or qualified) applies to the condition of the horse at the time of the sale, it follows, as a matter of course, that it must be given at that time, otherwise it cannot be considered as forming part of the bargain.
In the case of Eaves against Dixon, which was an action brought by Eaves to recover the value of a horse bought by him of Dixon, but which died a few days after the sale, the plaintiff having failed in proving that there was anything the matter with the horse at the time of the sale, the Judge said —
“On the warranty of a horse it is not sufficient for the plaintiff to give such evidence as to induce a suspicion that the horse was unsound: if he only throws the soundness into doubt, he is not entitled “to recover; the plaintiff must positively prove that the horse was unsound at the time of the sale.”
And the seller must remember that he is strictly confined to the terms expressed at the time of sale, and that the terms of the warranty will be strictly construed against him; and that no verbal declarations or qualifications subsequently made will be permitted to explain, after, or discharge the legal effect of the warranty.
But it is an established rule that the original contract is to be construed with equal strictness as to both parties; and a purchaser cannot insist upon the fulfilment of part, and reject the residue. And where a contract or agreement has been once closed and partly carried into effect, it cannot be affected by any declarations subsequently made; for the law then considers them to be made without any consideration, and it will not support transactions where no inducement is expressed or implied.
The purchase-money, or price of the horse, is the consideration here meant; and the law always requires that the cause should be shewn whereby one man is induced to part with his goods to another, or perform any alleged contract; for it will not lend its aid in enforcing the fulfilment of what is called a “nudum pactum,” or agreement to do or pay any thing on one side without a compensation on the other.
For instance: if I promise to give a man a horse, and there is nothing promised or given on the other side, the law will not enforce the performance of my promise.
Formerly it was doubtful whether it were necessary to have a warranty on a stamp or not; but that point is now settled, and it has been decided that it is not.
Mr. Selwyn, in his Law of Nisi Prius, says —
“It is usual to insert the warranty in the receipt for the price of the horse; in such case, the receipt, if duly stamped with a receipt stamp, will be evidence of the warranty. It does not now require an agreement stamp.”
The question was tried before Lord Ellenborough, in an action brought by Skrine against Elmore, on the warranty of a horse: to prove which, Skrine produced a written paper, signed by Elmore, which had a receipt stamp, and contained a receipt for the price of the horse with the words “warranted sound” subjoined.
Elmore’s Counsel objected that this was not evidence for the purpose of proving the warranty without an agreement stamp.
Mr. Dampier, who was the plaintiff’s Counsel, said that Mr. Justice Lawrence had decided that such a receipt might be received in evidence to prove the warranty as well as the payment of the price of the horse, if it had a receipt stamp merely; to which doctrine Lord Ellenborough assented.
The trial of Hands against Burton is also a case in point.
Some people still rely upon the now-exploded doctrine as to an implicit warranty arising out of giving what is called a “sound price” for a horse; that is, such a price as, from the appearance and nature of the animal, would be a full and fair price for it if in fact it were free from blemish and vice: and I merely mention it, in order that no one may be induced to relinquish any of that vigilance and circumspection so necessary in the purchasing of horses, and so ably recommended by Mr. Taplin on the faith of this doctrine.
It was first started by Mr. Christian, in a note to his edition of Mr. Justice Blackstone’s Commentaries on the Laws of England; but Mr. Selwyn says —
“Formerly, indeed, it was a current opinion that a sound price given for a horse was tantamount to a warranty of soundness; but it was observed by Justice Grose, in Parkinson v. Lee, that when that doctrine came to be sifted, it was found to be so loose and unsatisfactory a ground of decision, that Lord Mansfield rejected it, and said that there must either be an express warranty of soundness, or fraud in the seller, in order to maintain the action.”
It has, however, been decided in several cases:
Chandelor v. Lopus, Cro. Jac. 4.
Parkinson v. Lee, 2 East, 323.
Mellish v. Motteux, Peake, 156.
Baglehole v. Walters, 3 Camp. 154.
Lewis v. Cosgrave, 2 Taunt. 2.
that the price paid is a circumstance entitled to weight where there is evidence of express warranty, although not clearly shewn; and may be coupled with a knowledge of the defect in the seller, or other circumstances of suspicious dealing on his part, to raise the question with the Jury of fraud, entitling the purchaser to recover back the purchase-money.
CHAP. II
WE HAVE NOW seen the course to be pursued on the purchase or sale of horses: we have also seen in what state the law requires a horse to be with which a general warranty of soundness is given, as well as the circumstances requiring a qualified one; and we have seen the time when such warranty, whether general or qualified, must be given.
To enumerate the various ails and injuries to which horses are liable, and which constitute unsoundness, would far exceed the limits of a work of this nature.
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bsp; Most of them are notoriously so to the commonest observer; and many, on which a doubt may exist, will be found described, together with their relative causes, appearances, and consequences, in the pages of a Taplin, a White, or a Lawrence.
There are, however, a few cases which seem to require a specific notice; for, notwithstanding the law upon some of them may be established, the general reader is not aware of the fact; while other cases are as yet either doubtful, or have no rule whatsoever laid down respecting them.
I shall commence, therefore, with a case respecting what is commonly called
BUCK EYES.
THE eye of the horse is such a difficult matter to judge of, and liable to so many injuries, that it is almost impossible for any but a veterinary surgeon to give an opinion respecting it.
In actions where the alleged breach of warranty consists in a defect in the eye, it is a very difficult matter, after any lapse of time, to prove the existence of the disease prior to the sale.
There was a trial took place at Guildhall very lately, where the plaintiff, although a lawyer, failed in his proof of unsoundness.
The action was brought by Mr. Earle, a solicitor, residing at Romford in Essex, against a person of the name of Patterson.
It appeared, that on the 11th of last February Mr. Earle came to London, and put up his horse at the stables of a person named Milbank, residing at London Wall, where he saw the mare which was the subject of the action, and finally purchased her for thirty-one pounds, the defendant having warranted her sound. The mare was then given to a carrier to be conveyed to Romford; and on the road the carrier observed that she began to stare and whisk about, which led him to conclude that something was the matter with her eyes, and he imparted his suspicions to the plaintiff, Mr. Earle, who, however, attributed the symptoms to the mare not having been worked for some time, and having been kept in a warm stable. At the end of three weeks the defect in the eyes of the mare became more apparent, and it was then ascertained that she was what was technically termed “buck-eyed” and after the lapse of six weeks, she lost the sight of one of her eyes: and, from the state in which she appeared to the veterinary surgeon by whom she had been examined, it was clear that at the time of sale the animal had an incipient disease. The plaintiff was ultimately obliged to dispose of the mare for thirteen pounds; and he now sought a verdict for the difference between that sum and the price which he had paid for the animal.
Mr. Thomas Milbank proved the sale of the mare for thirty-one pounds. The bargain was made at witness’s stables at London Wall, and the mare was taken away by a Romford carrier.
Cross-examined by Serjeant Taddy. — The sale took place in February last, and there were frost and snow on the ground. The mare had been kept in a warm stable prior to her removal; and it was probable that taking her suddenly into the open air, with only one cloth to cover her, would have produced inflammation in her eyes.
A Romford carrier deposed to his having conveyed the mare from the stables of the last witness to the plaintiff’s stable at Romford. On the road she started at objects, and discovered symptoms of being “buck-eyed.”
Mr. Wm. Sewell, the veterinary surgeon, proved that he examined the mare by direction of the plaintiff about six weeks after the sale, and found that she had a confirmed cataract in one of her eyes, and that she was what is called “buck-eyed” — a disease which rendered her near-sighted.
In his cross-examination the witness said that inflammation in the eyes of a horse might be occasioned by a too sudden exposure to cold after the animal had been used to w arm clothing.
Other witnesses were called for the plaintiff, and gave similar evidence to the foregoing.
Mr. Serjeant Taddy addressed the Jury for the defendant, and denied that the mare had any incipient disease at the time the defendant sold her to the plaintiff. The cause of the inflammation in her eyes was the improper way in which she had been conveyed to Romford: and to prove that the plaintiff was satisfied with his purchase, he not only made no complaint for several weeks after, but actually said he would not take fifty guineas for the animal, she suited his wife so well. It then appeared that he sold the mare for thirteen pounds, without having given any previous notice to the defendant.
Two witnesses were then called forward on the part of the defendant. One of them proved that he had frequently ridden the mare, and never considered that any thing was the matter with her eyes: and the other said, that he would have given fifty guineas for the animal before she had been sold to the plaintiff.
The Lord Chief Justice Tindal charged the Jury, who, after a short consultation in the box, agreed to retire; and,„ after remaining out of Court for five hours, they returned with a verdict for the defendants
CAPPED HOCKS,
or an enlargement of the cap of the hock, does not often cause lameness, though it is a blemish.
At the Veterinary College, they generally recommend a special warranty against unsoundness arising from it to be taken.
COUGH.
In a case of Elton against Brogden, tried before Lord Ellenborough, he says, “While a horse has a cough, I say he is unsound, although that may cither be temporary or prove mortal.”
I may here observe, that the opinion expressed by his Lordship in this case respecting coughs seems to have been rather gratuitous; inasmuch as the real question was, whether temporary lameness constituted unsoundness. Nevertheless it is well worthy of attention; for I know by experience that very many people consider coughs of trifling or no importance; and I have known gentlemen, who would disdain to do a mean or dishonourable act, who have, through sheer ignorance of the fact, neither scrupled to sell and warrant, nor even to buy, horses with them; and it is only those who have witnessed the direful effects produced by coughs — which, from his Lordship’s mentioning the subject in this manner, I dare say he had — who attach the importance to them which they deserve.
However in a subsequent case, of Shillitoe against Claridge, the question came specifically before his Lordship, when he maintained the opinion expressed in Elton against Brogden.
It appeared that the horse had a cough at the time of sale, and that he had been bled for it before he was sold, and there was no evidence of any mismanagement by the buyer; and it appeared he was told that the horse had a cough, and was only used to the road, and that the purchaser had sent him out hunting.
Lord Ellenborough said —
“If the horse had a cough, he had always held that it was a breach of warranty; and he believed such was the understanding both in the profession and among veterinary surgeons.
“Knowledge,” he said, “made no difference.
“He had always understood that a cough was unsoundness; that the horse in question was therefore unsound at the time he was bought; and there was no proof of a discontinuance of the unsoundness, or that he would have got well if he had not been hunted.”
CRIB-BITING
is a point upon which a judgment has been given, though generally admitted to be an unsatisfactory One.
Mr. White, in his Treatise upon Farriery, speaking of crib-biting, says —
“This, though only a trick or habit which a horse gets, and which he may teach another that stands next him, especially a young horse, may be considered as a disorder, because it renders him very liable to indigestion and flatulent colic.
“There is no doubt that in crib-biting a horse swallows air; and I have seen a horse distend his stomach and bowels with it in an enormous degree, and would thereby often get the flatulent colic, and sometimes swell himself so that he can scarcely move.”
Others say that it is a habit originating in indigestion, by which the animal wastes the saliva which is necessary to digest his food, the consequence of which is a gradual emaciation.
The question, whether it is to be considered as unsoundness or not, was tried in an action brought by Broennenburg v. Haycock before Mr. Justice Burroughs, when his Lordship said he considered it a mixed case of law and fact.
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br /> “It is,” says he, “a curable vice in its first stage” — (and note, this horse was only proved to be an incipient crib-biter)—” it is a mere accident, arising from bad management in the training of the horse, and it is no more connected with unsoundness than starting or shying. The plaintiff might have demanded a warranty against this particular vice.”
Among the veterinary surgeons with whom I have conversed on the subject, not one of them agree with his Lordship in his view of the case.
Where crib-biting exists to a certain extent, I think we may infer, from his Lordship’s judgment, that it would constitute unsoundness; and the veterinary surgeons contend that it ought with equal propriety to be considered so in its earlier stage.
Were his Lordship’s suggestion of demanding a warranty against every particular fault to be acted upon, the warranty given on the sale of a horse Would soon extend into something like the size of a modern conveyance of houses or lands.
On the subject of crib-biting I cannot do better than quote the opinion of Mr. Yare, the inventor of the new Anti-Crib-biter — a man of great skill, and one who has devoted no small portion of his time to the study and prevention of the vice.
“I have,” says he, “no hesitation in saying that a crib-biter is bona fide an unsound horse; and notwithstanding the warring litigations that may have occurred occasionally in consequence of the habit, when a totally opposite notion to mine has been entertained on the question, yet I cannot avoid arraying my individual opinion in opposition to the fearful list of dissentients who may start up against me when my assertion is perused.
“I verily believe that a crib-biter, cold with a warranty of soundness, is to all intents and purposes returnable: and I think I cannot be accounted unfair or erroneous in this position, founded on the well-ascertained fact that crib-biting horses are injured in their stamina.”
