596 PURCHASER MUST SUE ON WARRANTY. 



back again, nor by reason of the unsoundness resist an action by the 

 vendor for the price, but might give the breach of warranty in evidence 

 in reduction of damages. And semhU, the jmrchaser of a sj)Ocific war- 

 ranted article, having once accepted it, can in no instance return the chattel 

 and recover the price as money paid on a coisideration ivMch has failed. 

 He must sue on the warrant ij unless there has leen a condition in the con- 

 tract authorising the return, or the vendor has received lack the chattel, 

 and thereby consented to rescind the contract, or has leen guilty of a 

 fraud, which destroys the contract altogether. But where the contract is 

 executory only when the chattel is received, as where goods are ordered 

 of a manufacturer, and he contracts to supply them of a certain quaUty 

 or fit for a certain purpose, the vendee may rescind the contract, if the 

 goods do not answer the warranty, provided he has not kept them a 

 longer time than was necessary for the purpose of trial, or exercised the 

 dominion of an owner over them by selling them. The authority of 

 this case was fully acknowledged in the following year by the Court of 

 Exchequer, in Gompertz v. Denton, where they expressly decided that 

 the purchaser of a horse can recover for a breach of warranty in an 

 action of damages only, and cannot sue on the indelitatus counts, as on 

 a fiiilure of the original consideration, unless under the circumstances 

 pointed out above ; and Lord Lyndhurst C.B. said : "The case of Street 

 V. Blay seems to heve been very much considered." 



It was also settled, in Hurst v. Orhell, that ivhere a horse has been 

 bought and the price paid, but the jnir chaser, by the terms of the axjreemeni, 

 has the option of returning tlie horse iviihin a certain time allowing a 

 certain sum for the use of it, the residue of the price may be recovered 

 by him after the horse has been returned or tendered in an action for 

 money had and received. Here the plaintiff had agreed to buy a pair 

 of horses for X80 from the defendant, £10 to be allowed by him out 

 of the £80 if he returned the horses within the month, and he was, 

 to pay £80 if he kept them over that time. Defendant gave the 

 following receipt : 



"£80. Received of — Hurst, Esq., eighty pounds, for two grey 

 horses, warranted sound and quiet in harness. Ten pounds more 

 if the horses are kept. 



" Henry Orbell." 



The ])]aintiff returned the horses within a month. The objection that 

 the action should have been on the special contract, or that the plain- 

 tiff should have proved liis readiness to pay the £10 before attempting 

 to recover back any part of the £80 as money had and received to his 



