164 



BREACH OF WARRANTY. 



Unless the 

 coutract was 

 executoiy. 



tlie price on tlie ground of breach of Warranty, except 

 in case of fraud or express agreement authorizing the re- 

 turn, or on a mutual rescission of the contract ; but he may 

 give the breach of Warranty in evidence in reduction of 

 damages {b) . 



And it would appear that where a contract is executory/ 

 only, as where a Horse is ordered of a party, and he con- 

 tracts to supply one fit for a certain purpose, the buyer may 

 rescind the contract after he has received the Horse, if he 

 does not answer that piu-pose, provided he has not kept 

 it longer than was necessary for trial, or exercised the 

 dominion of an owner over it, as by selling it. 

 Sired V. Dlifif. This was decided in Street v. Btai/ (c), and as it- is a very 

 important and leading case, it will be given together with 

 a considerable portion of the judgment delivered by Lord 

 Tenterden. The facts of the case were these. The plain- 

 tiff, on the 2nd of February, sold a Horse to the defendant 

 for 43/. with a Warranty of Soundness. The defendant 

 took the Horse, and on the same day sold it to one Bailey 

 for 45/. Bailey, on the following clay, parted with it in 

 exchange to one Osborne ; and Osborne, in two or three 

 days afterwards, sold it to the defendant for 30/. No 

 Warranty appeared to have been given on any of the three 

 last sales ; the Horse was, in fact, Unsound at the time of 

 the first sale, and on the 9th of February the defendant 

 sent the Horse back to the plaintifi:'s premises, requiring 

 the plaintiff to receive him again as he was then lame ; 

 but the plaintiff refused to accept him. The question for 

 consideration was, whether the defendant, under these cir- 

 cumstances, had a right to retm-n the Horse, and thereby 

 exonerate himself from the pa^ymient of the whole price ? 



After taking time to consider, Lord Tenterden, in de- 

 livering the judgment of the Coiui, said, " It is not neces- 

 sary to decide whether in any case the purchaser of a 

 speelfc chattel, who, having had an opportmiity of exercis- 

 ing his judgment upon it, has bought it with a WaiTanty 

 that it is of any particular quality or description, and 

 actually accepted and received it into his possession, can after- 

 wards, upon discovering that the Warranty has not been 



Judgment of 

 the Court of 

 Kin 2-' s Bench 



{li) According to the law of 

 Scotland, it appears that there 

 "would be an absolute right to 

 return the horse npon the discovery 

 of the breach of warranty, without 

 any specific stipulation to that 

 effect. Coustoii v. Chapman, L. R., 



2 H. L. (S. C), 250, per Lord 

 Chelmsford. 



(c) Street v. Blay, 2 B. & Ad. 

 456 ; and see Bau-son v. CuUis, 10 

 C. B. 523; and OUiraut v. Bailoj, 

 5 Q. B. 288. 



