WARRANTY. 35 



at th6 time of warranty. The contract being 

 thus broken on the part of the seller, it is at the 

 buyer's option either to treat it as a nullity, and 

 return the horse, or to retain him notwithstand- 

 ing", and bring an action on the warranty.* In 

 the former case, the price paid is the measure of 

 damages, which he will be entitled to recover in 

 an action ; in the latter, the difference between 

 that price and his real value. If he offer to 

 rescind the contract, and return the horse, he 

 may also recover the expenses of his keep ; but 

 in order to this, a positive tender is said to be 

 necessary.f No notice of the unsoundness need 

 be given to the vender to entitle the vendee to 

 maintain the action ; nor is it necessary to bring 



* In Scotland the purchaser cannot retain the horse 

 and hring an action to I'ecover the difference between the 

 price and the real value. He must either keep him at the 

 price at which he has bought him, or return him on getting 

 repayment, and if he have further suffered direct damage 

 from the unsoundness, &c., of the horse, he will also have 

 an action, of damages for reparation. 



f As in the case of Caswell v. Coare, " where upon breach 

 of the warranty proved, but no tender made of returning the 

 horse, it was objected that plaintiff could recover nothing 

 for the keep. Lord Mansfield : ' The contract being broken, 

 the defendant must give back the money, and the plaintiff 

 must return the horse ; but unless he has previously ten- 

 dered him, he cannot recover for the keep, because it was 

 not the defendant's fault that the plaintiff kept him.' '* 



