558 PLEA FOR BREACH OF WARRANTY. 



to do it for liim, but he gave no particnlnr orders about this mare. 

 The judge of the County Court left these questions to the jury: 1, Was 

 the mare sound or unsound at the time of sale ? 2, Was there a war- 

 rauty given by Sparrow to the plaintiff? 3, Was the warranty given 

 by the defendant's authority ? and 4, When the mare was sent back to 

 Sparrow, was she received by him for the plaintiff' or defendant ? The 

 jury found that the mare was unsound ; that a warranty was given, but 

 not by defendant's authority, and that she was received by Sparrow on 

 the defendant's account ; and the judge, considering the finding to be 

 ambiguous, ordered the verdict to be entered for the defendant. The 

 Court of Common Pleas directed a new trial with costs (which are 

 always granted to the successful party on an appeal from the County 

 Court) ; and j-j^r Jem's C.J. : " The proper question for the jury was 

 whether it was part of the contract that the mare should be returned if 

 she proved to be unsound. If so, and she were returned, there would 

 be a failure of consideration, and the plaintiff" would be entitled to 

 recover back the price." The case went down again, and the plaintiff 

 had a verdict. 



In an action on a bill given for the price of a horse sold under a 

 warranty, t?ie breach of the warranty is an answer to plaintiff's demand, 

 if the defendant has tendered the horse McTc., though the plaintiff did not 

 accept it {Lewis v. Cosgrave). "Where the buyer of a horse with a war- 

 ranty resells with a warranty a horse which proves unsound, and being 

 sued thereon offers his vendor the option of defending, but in conse- 

 quence of receiving no answer defends it himself, and fails, he may 

 recover these costs from his vendor as part of the damage occasioned 

 by his breach of warranty (Lewis v, PeaTce) ; but he cannot recover 

 such costs, if he could have discovered the breach of warranty by a 

 reasonable examination before the resale (Wrighfup v. Chamberlain). 

 In Clare v. Maynard, however, where the vendee, who had purchased a 

 horse for £45 with a warranty of soundness, and sold it to Mr. Collins for 

 £55, was obliged to repay the latter his money, and take the horse back, 

 in consequence of its proving unsound, the Court of Queen's Bench, on 

 a motion for a new trial, laid down that a claim of compensation for a 

 good bargain could not be allowed as damages in an action. 



A warranty need not have an agreement-stamp, and comes within the 

 exception in the schedule of 55 Geo. III. c. 184, as it is "a memoran- 

 dum letter of agreement relative to the sale of any goods, wares, and 

 merchandize ; " and it was held by Lord Ellenhorough C.J. that a 

 receipt for the price of a horse containing a warranty of soundness may 

 also be read in evidence, to prove the warranty, without an agreement- 

 stamp {Slcrine v. Elmore). But the fact of a receipt containing a 



