186 



PLEADING, EVIDENCE AND DAMAGES. 



Proof of an 



Account 



fcitated. 



Pi-oof in an 

 action for 

 Breach of 

 Warranty. 



Proof in an 

 action for a 

 False War- 

 ranty. 



Where it is 

 doubtful 

 whether false 

 Warranty is 

 proveable. 



also tlio TFarraiif//, the Breach of Warranty, and cither an 

 ii(iiux\\. Ilcscission of tlie Contract or a Power to Rescind, and 

 a consequent Tender of the Horse. 



To support a claim for Money found to he due on an account 

 stated, it must appear that, at the time of the accounting, 

 which must have been before action brought, a demand 

 existed between the parties respecting which an account 

 was stated, that a balance was then struck and agreed upon, 

 and that the defendant then expressly admitted that a 

 certain sum was then due from him to the plaintiff (/) . 



Where an action is brought on a Breach of Warranty, 

 and the Warranty is denied, the plaintiff must prove the 

 fact of the sale and Warranty having been given. If the 

 Breach is traversed the onus lies upon him to prove the 

 Unsoundness or Vice, or whatever is alleged as the subject- 

 matter of the Breach (A-) . And of com'se he must in all 

 cases prove Damaye whether General or Special. 



Where an action is brought for a False Warranty, the 

 plaintiff should be prepared to prove the Wrongful act 

 alleged to have been committed by the defendant (/), 

 namely, the Sale by means of the False Warranty. He 

 must also prove Damage whether general or special. 



Where no Warranty exists in the contract, but the con- 

 tract is induced by false representation, known by the 

 seller to be false, the action is grounded on the fraud, and 

 should be so framed (;«). As we have before stated (^i), 

 the knowledge of the defendant is in such case essential 

 to the cause of action (o). Where there is evidence of 

 fraud, it should be alleged in addition to a Breach of War- 

 ranty, where it is doubtful whether a Warranty can be 

 proved (7;). For if a Statement of Claim discloses a state 

 of facts, upon which an action may be maintained without 

 fraud, fraud need not be proved, though it be alleged ; and 

 the plaintiff may recover upon the facts disclosed, though 

 fraud be alleged and disproved {q). But where the plain- 

 tiff relies on fraud alone and does not succeed, he cannot 

 pick out facts which would othermse have entitled him to 

 relief apart from the fraud (r). 



(J) See Chit. Contr. 11th ed. 601, 

 608, and the authorities tliere cited. 



{k) Oshorn v. Thompson, 9 C. & P. 

 337; 1 Tayl. Evid. 337. 



{I) SeeMu)nmcri/y.raiiI,lG.B.3'27. 



(w.) Onnrod\.'Huth, 14 M. & W. 

 G51. 



(«) Ante, pp. 150, 151. 



(o) Paslcj/Y. Freeman, 2 Sm. L. C. 

 8th ed. CO. 



(p) Bullen & Leake's Pleadings, 

 4th ed. 428. 



(q) Swinfcn V. Lord Chelmsford, 5 

 H. & N. 890, 921. Per Parke, B., 

 Thorn V. Bhjland, 8 Ex. 725. 



()■) Il/id.son V. Lombard, L. E., 1 

 II. L. 324 ; London Chartered Bank 

 of Australia v. Lcmpriere, L. E,., 4 

 P. C. 572 ; Noad v. Murroio, 40 

 L. T., N. S. 100. 



