Chatfield v. Frost

Gilbert, J. The complaint avers that the defendant warranted the horses to be sound. The defendant, in his answer, admits that he warranted them to be sound so far as he knew, but denies each and every.other allegation of the complaint. Hpon the trial the plaintiff proved the warranty as. stated in the answer, that the horses were unsound, and that the defendant knew it. It is claimed by the appellant that there is a fatal variance between the cause of action alleged and that proved. One is a general warranty, while the other is a qualified one. By the former the warrantor warrants at all events, by the latter he only warrants for all he knows. In each case the cause of action is a breach of contract, for which assumpsit lies. Wood v. Smith, 4 C. & P. 45. The only distinction that can be drawn between the two forms of warranty is that a recovery upon a qualified warranty like that in this case cannot be had without proof that the seller knew of the unsoundness, while upon a general warranty a recovery may be had without such proof. We think, therefore, there was no variance, but if there was, that it would present a proper case for an amendment even upon this appeal, and we should not be justified in reversing the judgment on that ground. Bate v. Graham, 11 N. Y. 237. The appellant’s counsel is correct in stating that a warranty does not cover patent defects. As if a horse warranted perfect be without an eye, or a tail, this gives no cause of action. But the rule does not apply, unless the defects be such as a common observer cannot help perceiving, or where the seller leads the buyer to believe that the apparent defects are in reality not a cause of unsoundness. Margetson v. Wright, 7 Bing. 603; S. C., 8 id. 454; Cook v. Mosely, 13 Wend. 277; Duffie v. Mason, 8 Cow. 25 ; Whitney v. Sutton, 10 Wend. 412. The facts of this case present very strongly both exceptions to the rule. [360] Upon the merits, we have no hesitation in saying the judgment below is right. An unusually large number of exceptions are presented by the appellant’s counsel. Upon a consideration of each we have come to the conclusion tha¡t none of them are well taken. The judgment must be affirmed, with costs. Judgment affirmed.