
    *Francis Rivers v. John Gruget.
    In an action of assumpsit on an implied warranty of a horse, a slight or temporary defect will not warrant the reeision of the contract, or the recovery of the price paid, 
    
    The plaintiff purchased a grey horse of the defendant at $250, but being dissatisfied with his gait, he proposed to the defendant, a few days after, to exchange him for another, and the defendant told him, that he would let him have choice of three others which he had, in exchange, and the defendant took, in exchange, a bay horse, the subject of this action.
    One witness, who rode home with the plaintiff, stated, that the horse was apparently well, active, and strong, but the next day it was discovered that he was diseased with a swelling of the vagina penis, was lame, and disposed to drag one of his hind feet.
    fl'he plaintiff then tendered the horse to the defendant, and upon his refusal to take him, gave him notice that he would be sold at auction on his account, and he was sold accordingly, and the defendant, through an agent, purchased him at that sale, for $75, and this was an action to recover the difference be-twéen the proceeds of this sale and that given.
    Several witnesses, on the part of the defendant, who had known the horse both before and after the sale, stated that they believed him sound at the timq the plaintiff got him, and that he was so at the time and after the sale at auction ; and those accustomed to horses, and skilled in their diseases, stated that the swelling of the vagina penis was common to them, not dangerous, and easily cured ; and that the lameness and disposition to drag the hind feet were the probable consequences of it.
    One of the witnesses, who knew the horse, said, that at the time of the sale at auction, he thought the horse was worth, and ought to have brought, $175.
    The case was left to the jury, and they found a verdict for the plaintiff, for the difference between the *sum paid for the grey horse and the proceeds ■* of the sale of the bay, at auction.
    A motion was made for a new trial, on the ground that the verdict was contrary to evidence.
    Bennett and Hunt, for the motion. De SaussuRE, contra.
    
      
      
         In the ease of Garment v. Barrs, Chief Justice Eyre observed, “a horse laboring tinder a temporary injury or hurt, which is capable of being speedily cured or removed, is not, for that, an unsound horse ; and where a warranty is made, that such a horse is sound, that it is without any view to such an injury ; nor is a horse, so ciroumstaneed, an unsound horse within the meaning of the warranty.” 2 Bsp. ÍT. E. R. 673. R.
    
   The opinion of the Court was delivered by

Johnson, J.

There was no proof of an express warranty on. the part of the defendant, as to the soundness of the horse ; and the claim of the plaintiff to a recovery, arises out of the doctrine of implied warranty, established as law in this State, which is extended to all defects of the thing sold, whether known or unknown to the seller. But I apprehend that every slight or temporary defect will not warrant the recision of the contract, or the recovery of the price paid; it- ought to be of that character which renders the thing sold permanently less valuable, either as to duration or extent: any other rule would tend to the utter destruction of all contracts, as there is scarcely any article of traffic which will not exhibit some mark or blemish which might escape the notice of a close observer.

The facts in this case prove that the. defect complained of, was, in its nature, temporary, and easily cured, and that, in fact, the horse was well in a few days, and there is no proof that any actual injury was sustained, unless it be that which arose out of the plaintiff’s own folly in selling the horse.

In all cases depending on facts, it is with the utmost caution I would interfere with the finding of a jury, but I think it is manifest, that in this case they have been governed more by the supposed equity of the ease, arising out of the defendant’s having purchased the horse at so low a price, than the strict rule of right; and I think they were also mistaken in adopting the value of the grey horse as the standard of their damages. The true standard was certainly the value. of the bay horse, which is proved to be less than the sum given for the grey.

Indeed the whole circumstances taken together, *were as wel J calculated to mislead a jury, intending to do justice to the parties, as any that could well exist. The defendant had got his own property again, and still retained a considerable sum, which he received from the plaintiff, which, upon first view, would seem to give the plaintiff a fair claim upon him, but when his right is tested by the rules of law, the unreasonableness of the claim is manifested. If the plaintiff gave in the first instance more than the horse was worth, or if he inconsiderately suffered him to be sacrificed by a sale 'at auction, it was his own folly, and I see no reason why the defendant was not as much at liberty to take the benefit of it as any other person ; and it does not belong to a Court or jury either to make contracts for the parties, or set aside those that are fairly made.

The motion in this case ought therefore to be granted.

ColcocK, B.ICHARDSON, Nott and Hugee, JJ., concurred. 
      
      
        Gadsden v. Raysor, 9 Rich. 282; Stevens v. Chappell, 3 Strob. 83.
     