182 



PLEADING, EVIDENCE AND DAMAGES. 



Statement of 

 the Promise 

 or Warranty. 



Condition an- 

 nexed to the 

 Promise or 

 Warranty. 



Qualification 

 of the Promise 

 or Warranty. 



The Purchase 

 and the Pay- 

 ment. 



ing" (c) ; nor where the price is stated as money, and 

 part of the price was paid by giving goods of a specified 

 value (/). 



If any one substantive part of a Warranty be proved 

 not to be true, there is a Breach on which an action may 

 be maintained, and it is sufficient that the plaintiff set 

 out all the substantive and material parts of the Contract, 

 the breach of which he complains of, the parts omitted 

 not qualifying in any manner the sense of those parts set 

 out upon which the Breaches are assigned. As where 

 the plaintiff declared that in consideration of his redelivery 

 to the defendant of an Unsound Horse, the defendant 

 promised to deliver to him another Horse in lieu, which 

 should be worth 80/. and be a young Horse, and then 

 alleged a Breach in both respects, it was held sufficient, 

 though it was proved that the defendant had also promised 

 that the Horse was sound and had never been in harness {g) . 



And where there was a private sale of a Mare at a 

 Repository, and a Warranty of Soundness was given, but 

 there was a Notice of the Rules of Sale, by which no 

 Warranty was to remain in force after twelve o'clock the 

 following day, the Court of Exchequer held it sufficient 

 to declare on the Warranty alone without the condition 

 annexed to it. However, Mr. Baron Parke said, " If the 

 matter relating to the notice had been by way of proviso 

 upon the Warranty, it might perhaps have been necessary 

 to state it in the Declaration, but upon that point I give 

 no opinion" (h). 



But where there is a Qualification of the Promise it 

 should be stated in the Statement of Claim ; for where the 

 plaintiff, before the passing of 15 & IG Vict. c. 7G, declared 

 on a Warranty that the Horse was " sound," and the 

 Warranty proved was that the Horse was " sound every- 

 where except a kick on the leg," the omission was held to 

 be fatal (/) . The plaintiff would now, however, be per- 

 mitted to amend. 



Where the Consideration is executory, it is necessary 

 for the plaintiff to prove the performance of the Considera- 

 tion on his part, that is to say, the Purchase, in order 



[e) "UquHs,'" in the Latin plead- 

 ings, was satisfied by proof of a 

 "Grclding," Gravely Y. Ford, Lord 

 Raym. 209. 



{/) Rands y. Burton, 9 East, 349; 

 Brown v. Fry, 1 Selw. N. P. 12th 

 ed. 652. 



[y) Miles V. Sheivard, 8 East, 7 ; 

 Clarke v. Gray, 6 East, 5G8. 



(A) Smart v. Hyde, 8 M. & W. 

 728. 



(j) Jones V. Cowley, 4 B. & C. 

 445 ; .S'. C. G D. & R. 533. 



