Warranty generally does not extend to cover patent or obvious defects. This was laid down long ago in Bailey v. Merrell (3 Bulstrode, 95). Yet, in the purchase of horses, so strongly has the principle of warranty been upheld in England, that it is not safe to rely implicitly upon this rule. In Siddard v. Kain (2 Bingham, 183), the plaintiff sold two horses to the defendant, telling him at the time of sale that one of them had a cold, but warranting them nevertheless "sound and free from blemish at the end of a fortnight".
At the end of the fortnight the buyer refused to complete, as one horse still had a cold and the other a swollen leg. The plaintiff thereupon brought his action for the price, but the jury found for the buyer, and refused a motion for a new trial, on the ground that the warranty applied not to the time of sale but to a future date. This decision recognized the general rule as to patent defects, but found for the buyer apparently on the ground that, the horses not being sound within the time stipulated, he was free to repudiate the contract.
Another case, which cannot be regarded as altogether satisfactory, is that of Margetson v. Wright (17 Bingham, 603; vide Bingham, 454). In this case the plaintiff, a lawyer, bought a horse for racing purposes of the defendant, who was a horse-dealer. At the time of sale the defendant pointed out to the plaintiff that the animal was a crib-biter, and had had a splint, and in consideration of these faults agreed to take a less price than he would have otherwise accepted. The warranty was in these words:
"And the said Mr. Wright does hereby warrant the said horse to be sound, at this time, in wind and limb".
The horse was taken away, put into training, and at the end of six months broke down, and the plaintiff thereupon brought an action and recovered a verdict for breach of warranty.
A new trial was applied for and granted, and again the jury found for the buyer, on the ground " that, although the horse had exhibited no symptoms of lameness when the contract was made, he had upon him the seeds of unsoundness at the time of the contract, arising from the splint". A motion for another new trial was refused.
The moral to be drawn from this case, is that no one who sells a horse with a patent defect should warrant it without a memorandum upon such warranty that he will not be responsible for any consequences that may arise from such a defect. In another case, Smith v. O'Bryan (Law Times, N.S. 346), the jury gave a verdict for the plaintiff' on somewhat similar grounds. There the horse fell lame after sale, and the jury found that such lameness arose from a certain splint to which the owner had called the plaintiff's attention at the time of sale. Of course, as already intimated, the general rule that a warranty does not extend to patent defects does not apply where the buyer has no power of inspection: "Where there is no opportunity to inspect the commodity, the maxim caveat emptor does not apply" (per Lord Ellenborough, in Gardiner v. Gray, 4 Camp. 144).
It should be noticed that, as the law now stands, a written warranty can be varied by parole evidence (Graves v. Key, 3 B. v. Ad. 313, 1832).
A distinction should also be drawn between patent defects, which are the defects of disease, accident, etc, and such as are in the nature of natural malformations.
These latter are patent, and may seriously interfere with a horse's action, as where it is cow-hocked, but a warranty will not cover them. Whether curby hocks are a natural malformation or not is a moot-point, and in Brown v. Elkington (8, 7 v. AY. 132, 1841) the jury, under the judge's direction, found for the defendant on the ground that curby hocks are not, like splints, symptoms of disease, but malformation for which the seller is not liable.
One question that naturally suggests itself in connection with this subject of patent defects is, what is the position of dealers in respect of it? These, it is clear from their special training, are better able to judge of, and would be quicker to notice, defects than an ordinary or unskilled person, and defects that would not be patent to the latter might be so to them. The answer is that the law makes no distinction between skilled and unskilled persons in respect of patent defects, but the former are placed in the same favourable position as the latter in this respect. And rightly, as a man's special skill should not be pleaded to his disadvantage. Of course, where defects are so patent as to be obvious to any one, neither a dealer nor a private person would be protected by a warranty. Many defects are obvious to any one, as, for instance, broken knees and severe lameness. Vice, too, can hardly be concealed. Very often, however, a warranty is impugned when the buyer only is in fault. A horse that was perfectly free from vice when sold may be rendered vicious by cruel or improper treatment; or a horse that was perfectly quiet to ride or drive in the hands of its former owner may become restive from want of exercise and from high feeding;.
Defects, of course, that are not patent may be covered by a warranty; but so indeterminable is the law of patent defects as applied to horse warranty, that many dealers refuse to give warranties either absolutely or for more than a certain time. We have already shown that a warranty given by Messrs. Tattersall at their weekly sales at Albert Gate extends only to two days, and a common warranty from Horncastle Fair lasts twenty-eight days.