§ 128. Implied warranty created by fraud in the sale. -Fraud vitiates all contracts. Hence, an implied warranty occurs where a sale has been effected by fraudulent misrepresentations or concealment of facts which the vendor was bound to disclose.

There is also another class of implied warranties, which result from any well established usage, with reference to which it may fairly be assumed the contract was made. Thus, in the case of Jones v. Bowden,1 it was said that where sheep were sold as stock there was an implied warranty that they were sound, proof having been given that such was the custom of the trade, viz., "that sheep sold as stock were understood to be sheep that were sound." This implied warranty from usage may result where no general custom is shown, if it appears that the parties have had many similar mutual dealings; in such a case, the sale will be presumed to be made in compliance with what has become the uniform practice and the understanding which thereon has grown up between the parties; but the general usage in the vicinity or the course of dealing between the parties must have been so universal and uniform as to give strong grounds for belief that the parties recognized and assented to it.2

and ascertain whether it is adapted to the purpose intended, and to return it if not so adapted." (Tyev. Fynmore, 3 Campb. 462; Nichols v. Godts, 10 Exch. 197; Willis r. Consequa, 1 Peters' C. C. 301.)

14 Taunt. 847-853; Weal v. King, 12 East, 452.

Story on Sales, Sec. 211: "If nothing be said in relation to the terms of the sale, it will be presumed to be made in compliance with the general usage or custom of the trade, or with the uniform practice and course of dealing between the parties." (Wood v. Wood, 1 Car. &. P. 59; Moore v. Voughten, 1 Stark. 487; Scott v. Irving, 1 Barn. & Adol. 605; Stewart v. Aberdein, 4 Mees. & W. 211.)

2 Raitt v. Mitchell, 4 Camp. 146–149; Clark v. Baker, 11 Metcalf, 186; Winson v. Dillaway, 4 Metcalf, 221, 223; Mixer v. Coburn, 11 Metcalf, 559; Sutton v. Tatham, 10 Adol. & El. 27; Bayliffe v. Butterworth, 1 Exch. 425.

Story on Sales, Sec. 361: "What the intention of the parties is depends often upon the usage and custom, and is a question for the determination of a jury. Thus, upon a warranty that a horse is sound, the actual understanding of the parties is, in a great measure, dependent upon the custom and usage, as well as upon the peculiar circumstances of the case."

So, by the same author, it is said, in note 3, p. 428: "It seems, moreover, that the custom of any particular trade may establish an implied warranty between the parties who transact business therein; it being presumed, in the absence of evidence to the contrary, that the dealings of the parties were regulated by the custom."

§ 129. The measure of damages on breach of warranty of personal property is ordinarily the difference between the real value of the article and what it would have been worth if it corresponded to the warranty. Where the warranty has been express, the Courts, of late years, have gone further than to make up to the buyer this difference in value, and have given all the damages, which were the natural result from the breach, and which might reasonably have been anticipated by the seller, and thus be deemed to have been considered by the vendor at the time when he gave the warranty.1

In a late case, (1871) it was held "that if a usage be adopted by implied or tacit understanding, it is as obligatory upon the parties as if incorporated with the contract itself, provided the usage be not repugnant to or inconsistent with the terms of the contract, or in contravention of existing rules of law." (Appleman . Fisher, 34 Md. 540.)

1 "For a breach of warranty in the sale of chattels, the measure of damages is the difference between the actual value of the chattels and what their value would have been if they had been as warranted, to which may be added, in proper cases, the reasonable expenses incurred by the purchaser in consequence of such breach." (Giffert v. West, 33 Wis. 617.)

"The difference between the value of the article, as warranted, and the real value or market value, is the measure of damages on a breach of warranty." (Seigworth v. Leffel, Supreme Court Penn. Jan. Term, 1875.) .

"The contract price does not enter into the question as a rule of measurement; and, in an action to recover damages on the warranty of a horse, the true measure is the difference between the value of the horse, if he had been sound, as warranted, and his value in the diseased state. The reason is a conclusive one. If the vendee made a bad bargain, he is not to be reimbursed what he lost, by his simplicity, in damages for a breach of the warranty." (Ibid.)

Brown v. Edgerton, 2 Mann. & Gran. 102; Smead v. Ford, 102 E. C. L. 612. Defendant contracted to deliver to plaintiff, a farmer, a threshing-machine within three weeks. It was plaintiff's practice, known to defendant, to thresh wheat in the field, and send it thence direct to market. At the end of three weeks, plaintiff's wheat was ready in the field for threshing; and on plaintiff's remonstrating at the delay in the delivery of the machine, defendant several times assured him it should be sent forthwith. Plaintiff, having unsuccessfully tried to hire another machine, was obliged to carry home and stack the wheat, which, while so stacked, was damaged by rain. The machine was afterward delivered to plaintiff, who paid the defendant the contract price. The wheat was then threshed; and it was found necessary, owing to its deterioration by the rain, to kiln-dry it. When dried and sent to market, it sold for a less price than it would have fetched had it been threshed at the time fixed by the contract for the delivery of the machine, and then sold, the market price of wheat having meanwhile fallen.

Held, in an action for the non-delivery of the machine, that plaintiff was entitled to recover substantial damages in respect of the expense of stacking the wheat, of loss arising from its deterioration by the rain, and of the expense of drying it in the kiln. Held, further, that he was not entitled to recover any damages in respect of the fall in the market price of wheat.

And in some cases of express warranty, the Courts have permitted the jury to regard profits which might reasonably have been anticipated by the buyer from the use of the article bought for a definite purpose. Thus, where seed has been sold, and warranted to be of a peculiar kind, or warranted to sprout and produce a crop, and the seed was different from the kind designated, or failed to produce generally, the vendor has been held for more than the mere difference in the value of the seed.1

1 Hadley v. Baxendale, 9 Exch. 341. Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive, in respect of such a breach of contract, should be such as fairly and reasonably may be considered as arising naturally; that is, according to the usual course of things, from such a breach of contract itself, or such as may reasonably be supposed to have been the contemplation of both parties, at the time they made the contract, as the probable breach of it. (Page v. Pavey, 8 Carr & Payne, 769; Randall v. Ruper, 96 E. C. L. [Ellis, Blackburn & Ellis] 83; Passinger v. Thornburn, 34 N. Y. 634; Griffin v. Colver, 16 N. Y. 489.)

CHAPTER X.

WARRANTY OF SOUNDNESS OF ANIMALS.

§ 130.

What constitutes soundness and unsoundness.

§ 131.

§ 132.

Meaning of the word “sound," in warranty of horses.
The measure of unsoundness.

§ 133.

Diseases which do or do not constitute unsoundness.

§ 130. What constitutes soundness and unsoundness. -The word "soundness" occurs occurs so frequently in the law treatises and decisions in matters of sale and warranty of animals, that its value as a descriptive term becomes important. It is applied to all domestic animals which come within the class known as "live stock"; but is used so much more frequently with reference to horses than other animals that, in order to arrive at a fair understanding of its value as a descriptive term, we are compelled to dwell upon, and go into full details in regard to, its significance and use as applied to them.

Mr. Youatt, in his work on "The Horse," 1 gives the rule as follows: "The horse is unsound that labors under disease, or has some alteration of structure which does interfere with his natural usefulness. The term 'natural usefulness' must be borne in mind. One horse may possess great speed, but is soon knocked up; another will work all day, but cannot be got beyond a snail's pace; a third, with a heavy forehead, is liable to stumble, and is continually putting to hazard the neck of his rider; another, with an irritable constitution, and a loose, washy form, loses his appetite and begins to scour, if a little extra work is exacted from him. The term 'unsoundness' must not be applied to either of these; it would be opening far too wide a door to disputation and endless wrangling. The buyer can

1 The Horse, by Wm. Youatt, 392.

discern, or ought to know, whether the form of the horse is that which will render him liable to suit his purpose, and he should try him sufficiently to ascertain his natural strength, endurance, and manner of going."

This definition does not appear fully to cover the ground taken by the ruling of the Courts: Mr. Youatt makes no mention, in his definition, of such alterations of structure as have resulted from accident, while the English rule, now well established, gives us the result of an abler and more diligent study of the subject; and from this rule we see that the disqualification for work, which renders a horse unsound, may arise either from disease or accident, and as said in an important English case," a man who buys a horse warranted sound must be taken as buying him for immediate use, and has a right to expect one capable of that use, and of being put to any fair work the owner chooses."1

§ 131. The meaning of the word "sound," in the warranty of an animal, will depend upon local custom and usage, as well as upon the circumstances of each case; and what the intention and understanding of the parties was, will be for the jury to decide.2

Mr. Chitty, in his work on contracts, says: "The rule as to an unsoundness of a horse is, that if, at the time of the sale, the horse has any disease which either actually does diminish the natural usefulness of the animal, so as to make him, less capable of work of any description, or which, in its ordinary progress, will diminish the natural usefulness of the animal; or if the horse has, either from disease or accident, undergone any alteration of structure that either actually does at the time, or in its ordinary

1 Kiddell v. Barnard, 9 M. & W. 671; Story on Sales, Sec. 361. But the custom or usage must, by competent testimony, be shown to be uniform; and even an occasional practice, tolerated to a certain extent, in a certain department of business for any given year, can only be established by proof of specific instances within the designated period. (Chenery v. Goodrich, 106 Mass. 566.) A usage of trade, however local and partial, will govern a contract proved, or legally presumed, to have been made with reference thereto. (Appleman v. Fisher, 34 Md. 540.)

2 Lewis v. Peake, 7 Taunt. 153; Atterbury v. Fairmauer, 8 Moore, 32; Hutchinson v. Bowker, 5 Mees. &. W. 535; Hart v. Hammett, 18 Vermont, 127. In this case, p. 130, in the opinion of the Court it is said: "The object of admitting proof of usage in such a case is, that effect may be given to the contract according to the intent of the parties. Can there be any sound objection to the defendant's showing, by parol, the sense in which the terms were in fact used by the parties when making the contract?"