Poland, Ch. J.
We have not been furnished with a copy of the plaintiff’s declaration, but it is agreed that it is in the usual form in case for a false warranty, under which the plaintiff might recover by proving either a deceit, or an express warranty, and a breach of it. It is apparent from the exceptions, that the plaintiff at the trial sought to establish his case wholly upon the latter ground, and in that respect, his case was to be made out in the same manner precisely as if his action had been assumpsit on the contract of warranty. The plaintiff proved a general warranty of soundness of the horse by written agreement of the defendant
The only question in issue then, was, whether the warranty was broken ; that .is, whether at the time said warranty was executed, there was an existing unsoundness in the horse, that [613]*613was covered by the warranty. The plaintiff claimed that the horse had ringbones, and an enlargement of the gambrel joints, at the time. The jury found these did not exist at the time of warranty, which effectually disposed of this claim.
The plaintiff claimed also that the horse was unsound at the time of warranty by reason of quarter cracks, and a bunch on •one fore leg ; that these were unsoundnesses at the time, and constituted a breach of the warranty. The defendant admitted the existence of both these defects at the time, but denied that either amounted to an unsoundness, but if either of them was so, ■claimed that it was not covered by the warranty, for the reason that it was fully known and understood by the plaintiff or his agent when the warranty was made. The court charged the jury, that if the trade was made for the horse with the defendant by David Hill, as agent for the plaintiff, then the plaintiff could not recover on account of these defects, as it was conceded that David Hill had notice of them at the time of the trade. A •question is made by the plaintiff, as to the correctness of this instruction, in relation to notice to his agent being notice to him. It does not appear from the ease what was the extent of David Hill’s authority to act for the plaintiff in the purchase of the horse, whether he had authority to complete the purchase or not, but it appears that he was more than a mere messenger to receive proposals; he fully negotiated a trade, and paid what was to be a part of the price, if the plaintiff approved of the trade; and the bargain was completed substantially upon the ' terms the agent had agreed upon. The closing of the trade by the plaintiff was a consummation of the negotiation by David Hill with the defendant, an acceptance by him of the terms they had agreed upon. David Hill then stood in the place of the plaintiff during the whole negotiation, and what was communicated to him in the course of it, and as a part of it, we think was the same as if the plaintiff had conducted the negotiation in person, and himself received the same information his agent did. The instruction so far we regard correct.
The more important question in the case arises upon the other points of this branch of the charge, in the condition of the «evidence on the subject; that as David Hill saw the quarter [614]*614eraek, and the hnnch on the fore leg of the horse during the nego-> tiation, and before 'the sale and warranty, they should be wholly laid out of the ease.
The express contract of general warranty ot soundness in terms covers every existing unsoundness, whether known by the parties at the time of the horse trade or not. It seems somewhat anomalous to make the liability of a part}' upon an express contract, for a breach of it, to depend upon the fact, whether the party taking such contract, knew at the time that the party was contracting what he could not perform.. But it seems to have been established from the earliest history of this class of actions, that a general warranty does not cover defects that are perfectly visible, and obvious to the senses, and known to the party taking the warranty. The illustration generally given in the old books is the sale of a horse with a general warranty of soundness, which has lost one eye, or an ear, or a tail. The reason- given why the general warranty does not cover such defects, is because it is presumed that they are not intended to be included in the warranty, being fully known to the parties at the time.
j The county court held that this principle applied to this case as to the quarter cracks and bunch on the leg. "Was this correct ? It was conceded that these defects, so far as they were obvious and visible, were known to the plaintiff, or his agent. So far as the quarter cracks are concerned, there would seem to be but little ground, if any, to find fault with it. The plaintiff s agent saw and examined them, and told the defendant, he did not care much about them as they could be cured, and the plaintiff proved that they were cured in about a year. It does not appear but that they were eur'ed as soon as he supposed they could be, or that this defect .proved to be any different or greater, than was apparent to the agent’s observation at the time.
The plaintiff’s agent also saw the bunch on the fore leg. He testified that it was spoken of between him and the defendant at the time, and that the defendant said it had always been there, but did not injure the horse. The defendant testified that the bunch made its appearance when the horse was about two years old, that it was very small, not larger than a pea, not readily [615]*615discoverable, and had never in the slightest degree injured or affected the horse in any manner, and that he so informed the plaintiff’s agent. It does not appear from the case that the plaintiff’s agent believed or had any reason to believe at the time, that the bunch was anything more than a mere blemish, which would never render the horse less capable for use or service. The'plaintiff gave evidence tending to prove that in fact the bunch was an unnatural deposit of bone, that it constituted an unsoundness in the horse at the time of the sale, and that it affected the walking of the horse, and created a weakness in the joint. Now, conceding that the jury should find the facts proved, in relation to the real character and consequences of this bunch, as the testimony tended to show, (and the plaintiff of course had the right to have the case put to the jury as to this,) could it be truly said that the plaintiff’s agent had full notice of this unsoundness ? We think not.
It was pointed out to him as a mere blemish, not affecting the real soundness of the horse, and which never had injured him, and from the description of it in the exceptions, probably the most skillful and experienced man could not have determined with certainty which it was. If in truth it was different from what it appeared, and from what the defendant represented and believed it, and was an unsoundness affecting the usefulness and value of the horse, it would be covered by the warranty, and the knowledge which plaintiff had of it, as an entirely different and innocent thing, would not prevent it. This bunch on the horse’s leg was one of those equivocal defects that a warranty is taken to guard against by the purchaser.
The rule excluding from a warranty such defects as are known to the purchaser, only applies to such as are perfectly obvious to the senses, and the effects and consequences "of which may be accurately estimated, so that no purchaser would expect • the seller intended to warrant against them.
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Poland, Ch. J.
We have not been furnished with a copy of the plaintiff’s declaration, but it is agreed that it is in the usual form in case for a false warranty, under which the plaintiff might recover by proving either a deceit, or an express warranty, and a breach of it. It is apparent from the exceptions, that the plaintiff at the trial sought to establish his case wholly upon the latter ground, and in that respect, his case was to be made out in the same manner precisely as if his action had been assumpsit on the contract of warranty. The plaintiff proved a general warranty of soundness of the horse by written agreement of the defendant
The only question in issue then, was, whether the warranty was broken ; that .is, whether at the time said warranty was executed, there was an existing unsoundness in the horse, that [613]*613was covered by the warranty. The plaintiff claimed that the horse had ringbones, and an enlargement of the gambrel joints, at the time. The jury found these did not exist at the time of warranty, which effectually disposed of this claim.
The plaintiff claimed also that the horse was unsound at the time of warranty by reason of quarter cracks, and a bunch on •one fore leg ; that these were unsoundnesses at the time, and constituted a breach of the warranty. The defendant admitted the existence of both these defects at the time, but denied that either amounted to an unsoundness, but if either of them was so, ■claimed that it was not covered by the warranty, for the reason that it was fully known and understood by the plaintiff or his agent when the warranty was made. The court charged the jury, that if the trade was made for the horse with the defendant by David Hill, as agent for the plaintiff, then the plaintiff could not recover on account of these defects, as it was conceded that David Hill had notice of them at the time of the trade. A •question is made by the plaintiff, as to the correctness of this instruction, in relation to notice to his agent being notice to him. It does not appear from the ease what was the extent of David Hill’s authority to act for the plaintiff in the purchase of the horse, whether he had authority to complete the purchase or not, but it appears that he was more than a mere messenger to receive proposals; he fully negotiated a trade, and paid what was to be a part of the price, if the plaintiff approved of the trade; and the bargain was completed substantially upon the ' terms the agent had agreed upon. The closing of the trade by the plaintiff was a consummation of the negotiation by David Hill with the defendant, an acceptance by him of the terms they had agreed upon. David Hill then stood in the place of the plaintiff during the whole negotiation, and what was communicated to him in the course of it, and as a part of it, we think was the same as if the plaintiff had conducted the negotiation in person, and himself received the same information his agent did. The instruction so far we regard correct.
The more important question in the case arises upon the other points of this branch of the charge, in the condition of the «evidence on the subject; that as David Hill saw the quarter [614]*614eraek, and the hnnch on the fore leg of the horse during the nego-> tiation, and before 'the sale and warranty, they should be wholly laid out of the ease.
The express contract of general warranty ot soundness in terms covers every existing unsoundness, whether known by the parties at the time of the horse trade or not. It seems somewhat anomalous to make the liability of a part}' upon an express contract, for a breach of it, to depend upon the fact, whether the party taking such contract, knew at the time that the party was contracting what he could not perform.. But it seems to have been established from the earliest history of this class of actions, that a general warranty does not cover defects that are perfectly visible, and obvious to the senses, and known to the party taking the warranty. The illustration generally given in the old books is the sale of a horse with a general warranty of soundness, which has lost one eye, or an ear, or a tail. The reason- given why the general warranty does not cover such defects, is because it is presumed that they are not intended to be included in the warranty, being fully known to the parties at the time.
j The county court held that this principle applied to this case as to the quarter cracks and bunch on the leg. "Was this correct ? It was conceded that these defects, so far as they were obvious and visible, were known to the plaintiff, or his agent. So far as the quarter cracks are concerned, there would seem to be but little ground, if any, to find fault with it. The plaintiff s agent saw and examined them, and told the defendant, he did not care much about them as they could be cured, and the plaintiff proved that they were cured in about a year. It does not appear but that they were eur'ed as soon as he supposed they could be, or that this defect .proved to be any different or greater, than was apparent to the agent’s observation at the time.
The plaintiff’s agent also saw the bunch on the fore leg. He testified that it was spoken of between him and the defendant at the time, and that the defendant said it had always been there, but did not injure the horse. The defendant testified that the bunch made its appearance when the horse was about two years old, that it was very small, not larger than a pea, not readily [615]*615discoverable, and had never in the slightest degree injured or affected the horse in any manner, and that he so informed the plaintiff’s agent. It does not appear from the case that the plaintiff’s agent believed or had any reason to believe at the time, that the bunch was anything more than a mere blemish, which would never render the horse less capable for use or service. The'plaintiff gave evidence tending to prove that in fact the bunch was an unnatural deposit of bone, that it constituted an unsoundness in the horse at the time of the sale, and that it affected the walking of the horse, and created a weakness in the joint. Now, conceding that the jury should find the facts proved, in relation to the real character and consequences of this bunch, as the testimony tended to show, (and the plaintiff of course had the right to have the case put to the jury as to this,) could it be truly said that the plaintiff’s agent had full notice of this unsoundness ? We think not.
It was pointed out to him as a mere blemish, not affecting the real soundness of the horse, and which never had injured him, and from the description of it in the exceptions, probably the most skillful and experienced man could not have determined with certainty which it was. If in truth it was different from what it appeared, and from what the defendant represented and believed it, and was an unsoundness affecting the usefulness and value of the horse, it would be covered by the warranty, and the knowledge which plaintiff had of it, as an entirely different and innocent thing, would not prevent it. This bunch on the horse’s leg was one of those equivocal defects that a warranty is taken to guard against by the purchaser.
The rule excluding from a warranty such defects as are known to the purchaser, only applies to such as are perfectly obvious to the senses, and the effects and consequences "of which may be accurately estimated, so that no purchaser would expect • the seller intended to warrant against them.
All other defects, though apparent to some extent, but still equivocal and doubtful in their character, whether they are permanent or temporary, or whether they are mere harmless blemishes or but partially developed unsoundness, must be understood to be included and covered by a general warranty; and [616]*616warranties are usually asked and given to proteet purchasers' against the risk presented by such cases.
We are of opinion, therefore, that the court erred in -withdrawing this part of the case from the jury, but that the evidence should have been left to them to find, whether this bunch was what it was represented and understood to be at the time of the sale, or whether it was an ubsoundness affecting the horse, as the plaintiff claimed it to be, and if the latter, that it would entitle the plaintiff to recover.
We are of opinion also that there was error in excluding what the plaintiff said to Williamson when he hired, and returned- his horse as to the business he was going to Bridport upon, and what he had been there for. It was offered merely to identify this time of hiring as the one when he made the trade with the defendant, like fixing a date. For this purpose it is common to allow' witnesses to refer to w'hat third persons have said, to their having heard of a particular e.vent, &c., to fix the time. Here, coupling what the plaintiff said with the fact of his having the team and making the journey, the declarations and the acts, it was competent evidence to identify this occasion with the purchase of the horse. It is impossible to suppose the plaintiff could have had it in mind then to be making evidence to aid him in a controversy with the defendant, or any one ; it was the ordinary, almost involuntary, utterance of a concurrent transaction. If on that day some third person had told Williamson he had been present and seen plaintiff purchase defendant’s horse on that day, it would be competent evidence as identifying this occasion as the day he bought the horse.
The early case of Ross v. Bank of Burlington, 1 Aik. 43, goes much farther than this in the admission of this kind of evidence.
The judgment is reversed and ease remanded for a new trial.