317 



This question appears to have been decided in 

 the case of Gompertz v. Denton, 3 Tyrwhitt, 232 ; 

 where it was held, that " a buyer of a horse on a 

 warranty of soundness, can only recover for breach 

 of it in an action for damages ; and unless both 

 parties agree to rescind, or unless in the original 

 contract it was stipulated to be rescinded, if any 

 breach of it took place, the buyer cannot sue the 

 seller for money had and received, as for a failure 

 of the original consideration." 



The case of Street v. Blay, 2 Barnwell and 

 Adolphus, 456, was referred to by Lord Lynd- 

 hurst in the case last quoted, and it is a very im- 

 portant case, because the doctrine of return under- 

 went full consideration. The plaintiff sold a horse 

 to the defendant for £43, with a warranty of sound- 

 ness ; the defendant sold it the same day to Bailey, 

 for £45 ; Bailey sold it the next day to Osborne ; 

 and Osborne sold it two or three days afterwards 

 to the defendant for £30. Osborne, Bailey, and the 

 defendant, sold it without a warranty. After it had 

 thus returned into the defendant's possession, he 

 discovered that it was unsound at the time that he 

 first purchased it from the plaintiff, and he offered 

 to return it to him. The plaintiff refused to take 

 it back, notwithstanding he had warranted it, and 

 brous^ht an action aoainst the defendant to recover 



