166 



BREACH OF WAKRANTY. 



Evidence in 

 mitigation of 

 damages. 



Unfitness for 

 a particular 

 purpose. 



An intcrme 

 diate profit. 



lu Wcfiton V. Boicncs (/), Totcers v. Barret i {(j), Faijnc v. 

 Whale {/i), Power v. Well^ (i), and Emanuel v. Dane (J), 

 the same doctrine was applied to an Exchange mth a 

 WaiTanty as to a Sale, and the vendee held not to be 

 entitled to sue in Trover for the chattel delivered by way of 

 barter for another received. If these cases are rightly 

 decided, and we think they are, and they certainly have 

 been always acted upon, it is clear that the purchaser 

 cannot by his otsti act alone, unless in the excepted cases 

 above mentioned, revest the property in the seller, and 

 recover the price when paid, on the ground of the total 

 failui^e of consideration ; and it seems to foUoAv that he 

 cannot by the same means protect himself from the pay- 

 ment of the price on the same ground." 



" On the other hand the cases have established, that the 

 breach of the Wan-anty may be given in eATidence in miti- 

 gation of damages, on the principle, as it should seem, of 

 avoiding circuity of action (/.-) ; and there is no hardship 

 in such a defence being allowed, as the plaintiff ought to 

 be prepared to prove a compliance vdih his Warranty, 

 which is part of the consideration for the specific price 

 agreed by the defendant to be paid." 



" It is to be observed, that although the vendee of a 

 specific chattel, delivered \\'ith a Wan-anty, may not have a 

 right to retiu'n it, the same reason does not apply to cases 

 of executory contracts, where an article, for instance, is 

 ordered from a manufacturer, who contracts that it shall 

 be of a certain quality, or fit for a certain purpose, and the 

 article sent as such is never completely accepted by the 

 pai-ty ordering it. In this and similar cases the latter may 

 retmm it as soon as he discovers the defect, provided he has 

 done nothing more in the meantime than was necessary to 

 give it a fan- trial" (/). 



" The observations above stated are intended to apply 

 to the pm'chase of a certain specific cJiattel, accepted and 

 received by the vendee, and the propeiiy in which is com- 

 pletely and entirely vested in him." 



" But whatever may be the right of the piu-chaser to 

 retiu-n such a waiTanted article in an ordinary case, there 



(/) Weston V. Downes, Doug. 23. 



{g) Toiccrs v. Barrett, 1 T. E. 

 133. 



(7() Payne v. Wlialc, 7 East, 27-1. 



(i) Poiver v. JFells, Doug. 34, n. 



(j) Etnaniiel v, Dane, 3 Camj). 

 299. 



{k) Cormach v. GUlis, cited 7 East, 

 480; Kinffx. Boston, 7East, 481,n. ; 

 and see Dawson v. CoUis, 10 C. B. 

 532. 



(/) OJccU V. Smith, 1 Stark. N. P. 

 C. 107. 



