& M. 290. But a defective formation, or badness of shape, which has not produced lameness at the time of sale, although it may render the horse liable to become lame at some future time (e. g. " curby hocks "), is not an unsoundness. Brown v. Elkington, 8 M. & W. 132. See also Dickinson v. Follett, 1 Mood. & R. 299. The " navicular disease" is an unsoundness. Matthews v. Parker, Oliphant, Law of Horses, 228. So of " thick wind." Al-kinson v. Horridge, id. 229. " Ossification of the cartilages." Simpson v. Potts, id. 224. The question of soundness or unsoundness is particularly for the jury; and the court will not set aside a verdict on account of a preponderance of the testimony the other way. Lewis v. Peake, the second point, it may be gathered from the somewhat conflicting authorities, first, that the buyer may bring his action at once, founding it upon the breach of warranty, without returning the goods; but his continued possession of the goods * and their actual value would be considered in estimating the damages.(/.) Secondly, he may return the goods forthwith, and if he does so without unreasonable delay, this will be a cission of the sale, and he may sue for the price if he has paid it, or defend against an action for the price, if one be brought by the seller.1 But if he has sold a part before his discovery of the "breach, and therefore cannot return them, he may still rescind the sale, and will be liable for the market value of what he does not return. (l) And if the vendor refuses to receive the goods back, when tendered, the purchaser may sell them; and if he sells them for what they are reasonably worth, and within a reasonable time, he may recover of the vendor the loss upon the resale, with the expense of keeping the goods and of selling them. (m) We should say, on the reason of the thing, that if the buyer sells the goods with all proper precautions as * to time, place, and manner, to insure a fair sale, the vendor will be bound by the price the goods bring, whether that be in fact equal to their value or not; but this may not yet be established by adjudication. If he has a right to return the goods, his tender of them completes his right to sue for the price, whether the vendor receives them or not. (n) But some authorities of great weight limit his right to return the goods for breach of warranty to cases of fraud, or where there was an express agreement to that effect between the parties. (o)

7 Taunt. 153.

1 Crib-biting was held covered by a warranty against vices, in Dean v. Morey, 33 Ia. 120; as to which, however, see Walker v. Hoisington, 43 Vt. 608. Corns were held a breach as to soundness, in Alexander v. Dutton, 58 N. H. 282. Nor is it material that a disease is curable. Thompson v. Bertrand, 23 Ark. 731. See also Kenner v. Harding, 85 Ill. 265.

(k) Fielder v. Starkin, 1 H. Bl. 17, is a leading case upon this point. A neglect to inform the vendor of the discovered breach of the warranty for several months after the sale, will not bar the purchaser's right to an action for breach of warranty. Pateshall v. Tranter, 3 A. & E. 103. Rutter v. Blake, 2 Har. & J. 353, is a strong American case, that an action may be maintained for breach of warranty without returning the goods; but it was here held, that the purchaser ought to give the vendor notice where the goods were deposited. In Kellogg v. Denslow, 14 Conn. 411, where the authorities are very elaborately and critically examined by Sherman, J., the rule of the text is adopted. There A agreed to furnish B with sundry articles of machinery, to be delivered subsequently, and to be free from defect. A delivered the articles accordingly, which were received and used by B for nearly a year, without notice to A of any defects therein. In an action brought by B against A on a warranty, claiming damages for defects in the articles at the time of delivery, it was held, that the effect of B's not having given notice of such defects in a reasonable time, was, that he had thereby affirmed the contract, but such omission constituted no defence to the action, which assumed the subsistence of the contract. See also Waring v. Mason, 18 Wend. 425; Thompson v. Botts, 8 Mo.

710; Borrekins v. Bevan, 3 Rawle, 23, Cozzens v. Whitaker, 3 Stew. & P. 322; Carter v. Stennel, 10 B. Mon. 250; Parker v. Pringle, 2 strob. L. 242; Milton v Rowland, 11 Ala. 732; Ferguson v. < diver, 8 Sm. & M. 332; Wright d. Howell, 35 Ia. 288. The weight of modern authority is decidedly in favor of the rule of the text, that an action lies for breach of a warranty express or implied, without returning the property, or giving any notice of the defect. In Hills v. Bannister, 8 Cowen, 31, A sold 15 a bell, warranting it not to crack within a year, and promising to recast it if it did. He was held not liable on his warranty, without notice, and neglect to recast it. of course, if the purchaser has not returned the goods, their real value will be deducted from his damages; the difference between the price paid, or to be paid, and the real value, being the measure of damages. Caswell v. Core, 1 Taunt. 566; Germaine v. Burton, 3 Stark. 32; Cary v. Gruman, 4 Hill (N. Y), 625; Voorhees v. Karl, 2 Hill (N. Y.), 288; Comstockv. Hutchinson, 10 Barb. 211; Hitchcock v. Hunt, 28 Conn, 343; Crabton v. Kile, 21 Ill. 180; Plant v. Condit, 22 Ark. 4.vi. Shupe v. Collen-der, .56', Conn. 489; Underwood v. Wolf, 131 Ill. 425; Murphy v. McGraw, 74 Mich. 318; Fairbank Canning Co. v. Metzger, 118 N. Y. 260.

(l) Shields v. Keltic, 4 Comst 122.

1 Jack v. Des Moines, etc. R. R. Co., 53 Ia. 399; Marshall v. Perry, 67 Me, 78 Morse v. Brackett, 98 Mass. 205; Wiley v. Athol, 150 Mass. 426, 134; Butler v. Northumberland, 50 N. H. 33; O'Malley v. Hendrickson, 29 N.J. L. 371 , Youghiogheny Iron Co. v. Smith, 66 Pa. 340; Gates v. Bliss, 43 Vt. 299.

The general rule for the amount of damage would be the price paid if the thing bought were returned. If not, it would be the difference between the price paid and the actual value. But if further damage resulted directly from the breach of warranty, that too would be recovered. Thus one selling coal dust to be used in making brick, and warranting it free from soft coal, was held responsible for the damage done to the bricks by the soft coal dust in that which was sold. (oo)