BREACH OF WARRANTY. 1G5 



complied witli, of liis own will only, without the concur- 

 rence of the other contracting party, retiu-n the chattel to 

 the vendor and exonerate himself from the payment of the 

 price, on the ground that he has never received that article 

 which he stipulated to piu-ehase." 



" There is indeed authority for that position. Lord Lord Eldou's 

 Eldon, in the case of Curtis v. Hannay{d), is reported to "{Jg^gj'' •^'" 

 have said, that he took it to he clear law, that if a person 

 purchases a Horse which is warranted Sound, and it after- 

 wards tiu"ns out that the Horse was Unsound at the time 

 of the Warranty, the buyer might, if he pleased, keep the 

 Horse and bring an action on the Warranty, in which he 

 would have a right to recover the difference between the 

 value of a Sound Horse and one with such defects as ex- 

 isted at the time of the Warranty ; or he might return the 

 Morse and bring an action to recover the full money paid ; 

 but in the latter case the seller had a right to expect that 

 the Horse should be retm^hed in the same state as he was 

 in when sold, and not by any means diminished in value. 

 And Lord Eldon proceeds to say, that if it were in a worse 

 state than it would have been in, if retm-ned immediately 

 after the discovery, the purchaser would have no defence to 

 an action for the price of the article." "It is to be im- 

 plied (says Lord Tenterden) that he would have a defence 

 in case it were returned in the same state, and in a reason- 

 able time after the discovery. This dictum has been adopted 

 in Mr. Starkie's excellent work on the Law of Evidence (r?), 

 and it is there said that a vendee may in such a case re- 

 scind the contract altogether by returning the article, and 

 refuse to pay the price or recover it back if paid." 



"It is however extremely difficult, indeed impossible, 

 to reconcile this doctrine with those cases in which it has 

 been held that where the property in the specific chattel 

 has passed to the vendee, and the price has been paid, he 

 has no right, upon the breach of the Warranty, to return 

 the article and revest the property in the vendor, and 

 recover the price as money paid on a consideration which 

 has failed, but must sue upon the Warranty, unless there 

 has been a condition in the contract authorizing the re- 

 turn, or the vendor has received back the chattel and 

 has thereby consented to rescind the contract, or has been 

 guilty of a fraud which destroys the contract altogether. 



{d) Curtis v. Sannay, 3 Esp. 83. (e) Starkie ou Evidence, part iv. 



p. 645. 



