The New York herald., 1921-09-18
HORSE NARRATIVES
AS TROUBLE MAKERS
Few Dealers Nowadays Risk
Unqualified Assertion That
Any Nag Is Sound.
FEAR LATENT DISEASE
Law Protects Buyer Against
All Defects, Known or I'm
known to the Seller.
FEAR LATENT DISEASE
BY GURNEY c. CUE.


predicting a contest as close and ex-
citing as the one in this years Futurity
when the buyer and the seller OF the
two-year-old colt Playfellow marshal
their forces TO compete for $l00, 200
stakes In the Supreme Court of New
York. Besides involving about the
largest sum ever known in a one-horse
case. the litigation over the sale OF
Man o. Wars younger brother will raise
one or two nice questions in the law of
horse warranty for which turfmen. and
lawyers. 100. seem unable 10 cite a
precedent.
Assuming that Sam Hildreth can
prove the alleged oral warranty of the
soundness of Playfellow. and that the
100000 colt was found 10 be a wind
sucker within a fortnight after his pur-
chase. II will then have to be decided
whether the habit existed when the
Soungster changed hands. and, IL it did.
then whether wind sucking constitutes
unsoundness within the meaning of the
law.
Walkover i'm Denver Case.
Old timers say the nearest approach
to such a case that can be recalled. was
the sale OF the gray tro.ter Denver,
IAN. at auction in Madison Square
Garden several years ago. After he had
been knocked down to William Steele of
Philadelphia, he was found to be a
cribber. which Is practically the same
thing as wind sucker so far as the
law or the case ia concerned. Mr.. Steele
At once returned the trotter to the
auctioneers and demanded his money
back. Without disputing the law of the
mater when the fact of cribbing was
established the Fasig Upton Company
returned the purchase price and resold
tne Morse, Tor much lower price than
before. to Nathan s;traus. who used
Denver several years with unusual
satisfaction on the Harlem River Speed
way In this instance the vice did not
materially affect the value of the horse
Tor the purpose for which he was pur-
chased. because Mr.. Straus kept him in
. specially constructed box stall which
prevented him from cribbing.
WarrantieS of soundness in the sale
OF horses have been the subject of In
Vulnerable decisions in the courts. and
these decisions are regarded as imposing
such liabilities on the seller who war
rants horse to be sound that few
dealers OF wide experience will nova
days hazard a warranty Of this kind.
I'VE wouldn't sell work horse as
Sound for John ID. Rockefeller" said
A. NJ Ernst. treasurer OF the Fiss, Doerr
d. Carroll Horse Company, a few days
ago. because trouble nearly always fol-
lows such representations. 1t takes SO
very little to amount to breach of the
warranty--just scratch is enough
that 1t amounts to giving the buyer the
privilege of returning the horse II he
wants to do so. We therefore sell them
kind and good wind or at most SER
viceably sound and then give the buyer
two days in which to try the horse out
after the SALE"
Don't Warrant I in 1000.
4. j. Tranter. head of the Fasig-Tip-
ton Company, said: I'VE do not war
rant one horse in 1000 to be sound: In
fact. / never accept a horse to be sold
that way without urging the consignor
not to warrant him sound and pointing
out the many trihing things that amount
to breach of warranty in the eyes of
the law"
When horse has been warranted
sound the burden of proof is on the
purchaser to show unsoundness sufficient
TO impeach the warranty. And what is
suffcient evidence is usually a question
Tor the jury. although judges have laid
down certain legal definitions of the
term soundness which juries are directed
to consider in reaching their verdIcts
Sir George Stephen. an English. lawyer
and horseman who wrote THE Adven-
lures of Gentleman In Search of
Horse defined soundness as "exemp-
tfon from every defect by which the
animal Is rendered less flt for present
use and convenience" A warranty Of
soundness. IL is generally held. protects
the buyer against all defects known or
unknown to the seller.
In the case of Hook v. Stovall 81 Ga,
IL was held that "a latent defect exist
ing at the time of sale, which by the
occurrence of natural circumstances de-
velops into a serious injury is a breach
of the warranty" And a warranty of
soundness in cattle was held by the Su-
preme Court of Iowa, In the case OF
Mitchell v. Pinckney. to be broken when
the cattle we're infected with the germs
OF disease which afterward developed,
though the fact was not known 20 tho
seller"
stin Hurdle to CIcar.
The rule as to unsoundness is thus
laid down in the case of Coates v.
Stevens IF at the time OF sale the
horse has any disease which either
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 IL the horse has either from
disease or accident undergone any al
teration of structure that either ac-
tually does at the time or In Its or
dinary effects will diminish the nat
ural usefulness of the horse. such
horse Is unsound.'
AS to the defects which constitute
unsoundnesg 1t was held In the case
OF Washburn V. Cuddihy. Gray. that
crib biting, affecting the health and
condition OF the horse so as to render
him less able TO perform service. and
of less value. Is unsoundness." In
Walker V. Halsington, 40 VT, horse
was warranted Sound and right but
proved TO be cribber. The court
said: Perhaps this horse was ply
sically sound, and perhaps not as to
that we make no decision. and express
no opinion, but the warranty was as
20 more than soundness II was that
the horse was sound and right. A fair
Interpretation of this warranty would
make II mean that the horse was right
In conduct and behavior--as to all
matters affecting it's value, as we'll as
In It's physical condition"
Cases on the subject OF cribbing and
wind sucking are very few, but the
tAce of crib biting was discussed In
&oennenburg " Haycock by Justice
Burroughs who said: 1T Is a mere
accident arising from bad management
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