168 



BREACH OF WARRANTY, 



Goods are re- 

 turnable 

 where there is 

 fraud. 



But not for 

 n on -corre- 

 spondence 

 M ith sample. 



Agreement 

 that a Horse 

 is to be re- 

 turned if 

 unsound. 



And Lord Lyndluu'st said, " There was a proposition in 

 this ease to rescind the contract, which the defendant was 

 at first willing to accede to, bnt the agreement to rescind 

 was never completed, therefore the contract remained open. 

 One party alone could not, hy his own act, rescind the con- 

 tract. The case of Street v. Bla// (o) seems to have been 

 very much considered. That case shows that you cannot 

 treat a contract as rescinded on the groimd of the breach of 

 Warranty, except there was an original agreement that the 

 party should be at liberty to rescind in such case, or unless 

 both parties have consented to rescind it. According to 

 that decision, which is the most recent, yoiu' remedy was an 

 action for damages " (^;) . 



In an unconditional Warranty, the only gromid on 

 which goods are retm-nable is that of Fraud. And Mr. 

 Baron Parke, referring to the case of Street v. JB/a// (o), 

 said, " When a Horse is warranted sound, and turns out 

 otherwise, the purchaser has no right to retiun him, im- 

 less the Warranty was fraudulent ; his only remedy is an 

 action on the Warranty ; this has been latehj settled, but 

 the general impression formerly among the profession, and 

 now amongst all others, is, that the pui'chaser is to return 

 the Horse "(^). 



Upon the sale of specific goods, with a Warranty that 

 they are equal to sample, the vendee cannot refuse to re- 

 ceive them on the ground that they do not correspond with 

 the sample, unless there be an express condition to that 

 effect ; Ijut he must trust to a cross-action, or rely on the 

 non- correspondence with sample as a ground for reduction 

 of damages (r). 



But if on the sale of a Horse there be an express War- 

 ranty by the seller that the Horse is sound, free from vice, 

 &c., yet if it be accompanied with an undertaking on the 

 part of the seller to take back the Horse and repay the 

 piu'chase-money, and on trial he shall be found to have 

 any of the defects covered by the Warranty, the buyer 

 must retiu'n him as soon as he discovers any of those 

 defects, imless he has been induced to prolong the trial by 

 any subsequent misrepresentation of the seller, because in 

 such case a trial means a reasonable trial (s). 



(o) Street v. Bhni, 2 B. & Ad. 

 456. 



(p) Gomjxrfz v. Denton, 1 Or. & 

 M. 207. 



(y) miliard V. OrbeU, Ex. Sit- 

 tings, Jan. 11, 1834. 



{>•) Dan-sou v. CoHls, 10 C. B. 

 523 ; Hayitorth v. Hutchinsou, L. 

 E., 2 Q. B. 447; 36 L. J., Q. B. 

 370, per Cockburn, C. J. 



(s) Adam v. Richards, 2 H. Bla. 

 573. 



