Morse v. Pitman , 64 N.H. 11 ( 1885 )

Bingham, J.

The plaintiff warranted the horse sound, surefooted, and all right in every way, shape, and manner; but the parties understood that tripping or stumbling arising from a temporary cause like improper shoeing was not covered by the warranty.

The horse’s joints next to the hoofs of the forward feet were inore upright than in,the average of horses, his right forward foot toed in slightly, and he had a close, low gait. He was surefooted when properly shod; but at the time of the sale he was not surefooted, by reason of defective shoeing, which rendered him less fit for service for the time being. The words “ properly shod,” as used in the referee’s report, mean that the horse’s organic peculiarities and low gait should be taken into the account in shoeing, so as to obviate their tendency to make him stumble, so far as possible.

The defendant, on learning that the horse stumbled, examined him, and consulted a man who had doctored horses, and had had much experience in driving, training, and dealing in them, as to what occasioned the stumbling; he also had the horse shod twice by an experienced blacksmith under his direction, and “ was not guilty of any negligence in his efforts to ascertain the cause of his tripping or stumbling, or to remedy the same;” and, becoming satisfied that the horse was not surefooted, within a reasonable time tendered him to the plaintiff, and rescinded the contract.

It appears, in substance, that the organic defect in the horse was of such a character that the defendant, possessed of ordinary knowledge of horses, acting in good faith, making all due inquiry, and guilty of no negligence in his efforts to ascertain the cause of the stumbling, and to remedy it, was unable to do so; and the question is, whether this defect comes within the warranty that the horse was surefooted, and all right in every way, shape, and manner. He was not surefooted at the time of the sale. He was not all right in every way, shape, and manner, for he had such organic defects that the defendant, in the use of all diligence, could not discover them and apply a remedy. Defects so obscure, so difficult to remedy, are not temporary within the understanding of these parties, but permanent.

Judgment on the report for the defendant.

Allen, J., did not sit: the others concurred.