Ocburton v. Young ( 1849 )

The Court

charged, that to entitle the plaintiff to recover, he must prove to the satisfaction j»f the jury—1. The contract of warranty ; that is, the consideration and the promise. 2. The breach of the contract of warranty. 3. The damage the plaintiff has sustained.

1. The plaintiff must prove an express warranty, viz: that he stated expressly that the horse was sound; or represented him as a sound animal. Whatever representations are made by the seller at the time of sale, as to the quality of the article, is an express warranty. But it must appear to the jury that the warranty was given to the plaintiff by the defendant, or by some person acting under the authority of 'the defendant, either before or at the time of the sale. If the warranty is made after the sale or completion of the contract, it is void for want of consideration, and the plaintiff in such case cannot recover.

2. If plaintiff has proved the contract, he must next show the breach of it. He must prove that the unsoundness, existed at the time of the sale. Any disease, infirmity or defect, which renders the horse less fit for present use and convenience, and not openly and palpably visible, and which is discoverable only by persons of skill and judgment in regard to the qualities of horses, constitutes unsoundness. Therefore, if a horse is deprived of sight in one eye, or the eye is defective; and this is only discoverable by persons skilled in horses, it constitutes unsoundness, and is a breach of the warranty.

Cullen, for plaintiff. McFee and Houston, for defendant.

3. The measure of damages is the difference between the actual or real value of the horse in his defective, unsound state, and his value in that sound state he was represented to be by the defendant.

The damage to the defendant, arising from the'unsoundness of the horse exchanged for, cannot be deducted from or set off against the plaintiff’s claim in this action.