may be a warranty as to a future event, where such an intention is clearly manifested.1

§ 1267. Warranty against future acts of government. So, undoubtedly, the parties may warrant with reference to the future acts of the public authorities; but in accordance with the rule that general warranties are to be construed with reference to existing conditions, such a warranty will not be extended by construction so as to protect the buyer against future acts of the public authorities.2

1 Eden v. Parkinson, 2 Doug. 733; Osborn v. Nicholson (1871), 13 Wall. (U. S.) 654.

3

§ 1268. Representations concerning soundness in animals. It was formerly thought that representations concerning the "soundness" of animals and slaves must prima facie be deemed to be mere representations and not warranties, unless so intended by the seller, and therefore that they imposed no liability when not knowingly false; but the modern cases have has never been supposed that the vendor or vendee contemplated a warranty against the exercise of this power [of eminent domain] when ever the public good or convenience required it," the court said that a similar principle was applicable here. "The buyer might have guarded against his loss by a guaranty against the event which has caused it. We are asked, in effect, to interpolate such a stipulation and to enforce it, as if such were the agreement of the parties. This we have no power to do. Our duty is not to make contracts for the parties, but to administer them as we find them. Parties must take the consequences, both of what is stipulated and of what is admitted [omitted?]. We can neither detract from one nor supply the other." Mittelholzer v. Fullarton, 6 Ad. & El. (N. S.) 989, was cited and relied upon as strictly in point.

In Richardson v. Mason (1868), 53 Barb. (N. Y.) 601, an action was maintained on a warranty that cows sold "were coming in in good season;" though this, as the court pointed out, was also a warranty as to their present condition. So in White v. Stelloh, 74 Wis. 435, 43 N. W. R. 99, it is said that there may be an express warranty on the sale of a bull-calf that when grown he will be a sure stock-getter.

2 In Osborn v. Nicholson (1871), 80 U. S. (13 Wall.) 654, there was a sale of a negro, expressly warranted "a slave for life." He was liberated soon afterwards by the United States government. In an action for the price, the breach of this warranty was set up as a defense; but it was held that the seller could recover. Quoting from Bailey v. Miltenberger (1856), 31 Pa. St. 41, the rule that "It

3 See Erwin v. Maxwell, 3 Murph.

established a different rule, in keeping with the general principles already referred to,' and it is now well settled that a positive affirmation respecting the soundness of animals, made to induce the sale and relied on by the purchaser, will be deemed to constitute a warranty even though it cannot be shown that the seller intended it as such.2

§ 1269. Words used.-To constitute a warranty of soundness it is not necessary that it should be made in express terms, or that the word "sound" should be used; equivalent expressions will clearly suffice. Thus to assert of a horse that it is "all right" may well be found to be a warranty that the horse is sound.3

§ 1270. What constitutes unsoundness.- What constitutes unsoundness, and therefore a breach of the warranty of soundness, is a question not readily yielding itself to fixed rules, and one which has given rise to some difference of opinion. With respect of horses the rule laid down by Baron Parke1 has been generally adopted in England and America.

(N. C.) 241, 9 Am. Dec. 602; McFarland v. Newman, 9 Watts (Pa.), 55, 34 Am. Dec. 497; House v. Fort, 4 Blackf. (Ind.) 293; Baird v. Matthews, 6 Dana (Ky.), 129; Inge v. Bond, 3 Hawks (N. C.), 101; Whitney v. Sutton, 10 Wend. (N. Y.) 411; Tyre v. Causey, 4 Harr. (Del.) 425; Hawkins v. Berry, 5 Gilm. (Ill.) 36; Hazard v. Irwin, 18 Pick. (Mass.) 95.

In a late case in Pennsylvania a statement that a horse is kind, sound and gentle is held not to amount to a warranty (Holmes v. Tyson, 147 Pa. St. 305, 23 Atl. R. 564, 15 L. R. A. 209); but Pennsylvania adheres more closely to the old doctrine in Chandelor v. Lopus than the modern English and American courts.

1 See ante, § 1235.

2 Hobart v. Young, 63 Vt. 363, 21 Atl. R. 612, 12 L. R. A. 693; Joy v.

Bitzer, 77 Iowa, 73, 41 N. W. R. 575, 3 L. R. A. 184.

A statement by the seller of mules, made in response to inquiry by the buyer, that "they are as sound as a dollar," is a warranty of soundness, and not the mere expression of the seller's opinion. Riddle v. Webb (1895), 110 Ala. 599, 18 S. R. 323.

3 It was so held in McClintock v. Emick, 87 Ky. 160, 7 S. W. R. 903. So of an assertion that a bull sold for beef was fat and all right." Money v. Fisher, 92 Hun (N. Y.), 347.

Whether a statement that a cow is "all right" amounts to a warranty was held to be a question for the jury in Tuttle v. Brown, 4 Gray (Mass.), 457, 64 Am. Dec. 80.

4 In Kiddell v. Burnard, 9 M. & W. 668. To like effect: Roberts v. Jenkins, 21 N. H. 116, 53 Am. Dec. 169

He said: "I have always considered that 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 immediately put to any fair work the owner chooses. The rule as to unsoundness 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 effects will, diminish the natural usefulness of the horse, such horse is unsound. . I think the word 'sound' means what it expresses, namely, that the animal is sound and free from disease at the time he is warranted to be sound."

§ 1271. Disease need not be permanent or incurable. Under this rule it is unnecessary that the disease be either permanent or incurable; it is enough if it detracts from the present serviceability of the animal. Neither is it necessary that the disease, at the time of the sale, be fully developed or matured; it is enough if there then existed the seeds or germs of the disease which subsequently manifested itself.1 So, on the other hand, there is no unsoundness within the meaning of this rule because there may be some temporary and curable disease which does not diminish present serviceability.2

§ 1272. Warranty against known defects - Usually none. A general warranty does not usually extend to defects which are known to the buyer, or to defects which are plain and obvious to the senses and which it requires no skill to detect.3

v. O'Bryan, 11 L. T. (N. S.) 346; note to Bassett v. Collis, supra.

A mare with foal conforms to a warranty that she was "all right in every way for livery purposes," according to Whitney v. Taylor (1868), 54 Barb. (N. Y.) 536.

Soundness in a slave was held to include mind as well as body (Simpson v. McKay, 12 Ired. (N. C.) 141; Tatum v. Mohr, 21 Ark. 349; Caldweil v. Wallace. 4 Stew. & P. (Ala.) 282); though a mere warranty that

a slave was "healthy" was held to extend to the body only (Nelson v. Biggers, 6 Ga. 205).

1 But the disease or defect, either in its complete or its incipient form, must have existed at the time of the sale. Bowman v. Clemmer, 50 Ind. 10; Miller v. McDonald, 13 Wis. 673; Merrick v. Bradley, 19 Md. 50; Woodbury v. Robbins, 10 Cush. (Mass.) 520. 2 See cases cited in note 4 to section 1270.

3 Fisher v. Pollard, 2 Head (Tenn.),

It is otherwise, however, where the seller intentionally contrives to conceal defects which would ordinarily be apparent.1 And though the general principle is that a general warranty will not protect against known or obvious defects, it is merely