The Democratic advocate. [volume] (Westminster, Md.) 1865-1972, 1891-05-16

whether ne knew the ueicc1 III iIS oiOS VI
not. and whether or not he stated that the
property was his.
What constitutes an unsound horse or
other animal Perhaps the best definition
is that given by au English judge, good
many years ago, and which has been often
quoted in the courts since off at the time
of the sale the horse has any disease which
either does diminish the natural usefulness
of the animal so as to make him less capa-
BILE of work of any description, or which, In
its ordinary progress, will diminish the nat
ural usefulness of the animal, or if the horse
has either from disease or accident under
gone any alteration of structure that either
actually does at the time, or in its ordinary
effects will, diminish the natural usefulness
of the horse, such horse is unsound." 1t
is held by the English courts, and generally
in this country, that warranty OF sound
ness is broken if the animal had any mfr
nifty which rendered him less fit for present
service; that it is not necessary that the dis
order should be permanent or incurable.
In Massachusetts, however, the Supreme
Court has said that lameness, if only acct
dental and temporary, would not be
breach of warranty, and it is probably the
law that temporary and durable trouble,
although existing at the time of sale, if it
does not injure the animal for present ser
vice, is not an unsoundness. From what
has been said above it will be seen that
many things which diminish the value of
an animal do not make it unsound. BalK-
ing, backing, biting, shying, running away,
/ kicking, &C., are vices in horse which are
not covered by warranty of soundness,
but would be covered by Il warranty OF
freedom from vice. 1t has been argued,
both in medical books and in the courts,
whether cribbing is an unsoundness or only
a bad habit. 1t has been decided that if
the cribbing has affected his health and
condition so that the horse is less fit for
present service the animal is unsound. 1t
is also claimed that the habit, if confirmed,
is the indication of disease such as will
constitute unsoundncss.
1t is a universal rule that fraud vitiates
every contract. No man is bound by a
bargain into which he has been led by a
fraud The party who is defrauded in a
sale may treat the bargain as of no effect,
may return the property bought and bring
suit for the money paid, or defend sue
cessfully against an action for the price, II
he has not already paid it. He must elect
to treat the contract as void within reas-
enable time after he has discovered the
fraud, or he will be held to have acquiesced
in the purchase and affirmed the contract.
If, instead of holding the contract to be
void, he chooses to recognize and affirm 1t,
he may do so, and bring suit to recover the
damage he has sustained by the fraud.
Fraud is defined to be any kind of an arti-
flee employed by one person for the purpose
of deceiving another. Every false state
ment, however, made by person trying to
: sell a horse is not considered fraud in law.
The law recognizes the fact that such a
person is apt to indulge in talk magnifying
the value of his goods and praising his
wares, and will even let him lie a little as
to how much the property cost him. The
law considers such words and statements as
"sellers' talk, concerning which "let the
buyer beware, and which are not sufficient
foundation for an action for fraud. False
statements, to be the grounds of avoiding
the sale, or for an action for deceit, should
generally be concerning the article or ami
NAL itself, and not be wholly confined to a
collateral matter. The purchaser must
have been deceived by the fraud before he
can take advantage of it. If he did not
believe the false representations made to
him he was not injured by them and can
not make them the basis of any action.
Only the defrauded party can rescind the
sale on account of fraud. The guilty one
is bound by it unless the other is willing
to release him. No one can take advant-
age of his own wrong.
The difference between a simple warranty
and fraudulent misrepresentation is one
of knowledge on the part Of the person
making it, 4 vendor, in order to make il
sale, says horse is sound. If he honestly
thinks so, although the animal proves to
be unsound, the purchaser is bound by
the bargain, but may bring an action for
damages for breach Of warranty. If, how
ever, the seller knew the horse was not
sound when he made the statement, 1t is a
fraud, and the purchaser may send back
the animal and sue for the money paid, or
NAV keep it and sue for his damages in an
action for deceit 1t is held that if the
vendor refuses to take the animal back the
purchaser, after he has offered to return it,
may sell it for the best price he can get
and collect the difference, together with
the cost of keeping. The ordinary dam
ages for a breach of warranty is the differ
cnce between the actual value of the animal
and what it would have beea worth if it
had been as warranted. The rules of law
in regard to warranty and fraud apply to
an exchange of property the same as in
cases Of sales for money.
When a person sells an animal which he
knows to be infected with contagious
disease, and such disease is in consequence
communicated to the herd of the purchaser,
the seller is liable for all the loss to the
cattle in the purchasers herd by reason of
their catching the disease. When horse
was represented to be perfectly gentle and
kind, the purchaser knowing such repre-
sensations to be false, agd the first time the
purchaser hitched up the horse it ran and
kicked and overturned the buggy, throwing
out the driver, it was held in suit for
damages that the purchaser could recover
for the injuries to the buggy and to his
person.