CHAPTER VIII. 



BREACH OF WARRANTY. 



Where a horse has been sold warranted sound, which it 

 can be clearly proved was unsound at the time of sale, the 

 seller is liable to an action on the warranty, without either 

 the horse being returned or notice given of the unsound- 

 ness. And in a case where there was a breach of war- 

 ranty. Lord Loughborough said, "No length of time 

 elapsed after the sale will alter the nature of a contract 

 originally false. It is not necessary that the horse should 

 be returned to the seller, or that notice should be 

 giren " (a). 



Where a horse warranted sound turns out unsound, the 

 seller is not bound to take it back again ; nor can the 

 buyer, by reason of the unsoundness, resist an action for 

 the price on the ground of breach of warranty, except 

 in case of fraud or express agreement authorising the re- 

 turn, or on a mutual rescission of the contract ; but he may 

 give the breach of warranty in evidence in reduction of 

 damages {h). 



And it would appear that where a contract is executory 

 only, as where a horse is ordered of a party, and he con- 

 tracts to supply one fit for a certain purpose, the buyer 

 may rescind the contract after he has received the horse, if 

 he does not answer that purpose, provided he has not kept 

 it longer than was necessary for trial, or exercised the 

 dominion of an owner over it, as by selling it. 



This was decided in Street v. Blay (c), and as it is a 

 very important and leading case, it will be given together 



Buyer neither 

 bound to 

 tender the 

 horse nor 

 give notice. 



Seller not 

 hound to take 

 hack the 

 horse. 



Unless the 

 contract was 

 executory. 



Street V. Blay. 



[a) Fielder v. Starkie, 1 H. Bla. 

 17; 2E. E. 700; and see PomWo«. v. 

 Lattimore, 9 B. & C. 265. 



(A) According to the law of Scot- 

 land, it appears that there would be 

 an absolute right to return the horse 

 upon the discovery of the breach of 

 warranty, without any specific stipu- 

 lation to that effect : Couston v. 

 Chapman, L. E., 2 H. L. (S. C), 

 250, per Lord ChelmBford. See also 



s. 11, sub-s. (2) of the Sale of Goods 

 Act, 1893, ante, p. 109. 



(c) Street v. Blay, 2 B. & Ad. 

 456 ; and see Dawson v. Collis, 10 

 C. B. 523 ; and Ollivant v. Bailey, 

 5 d. B. 288. The principles upon 

 which the judgment in Street v. Blay 

 was grounded appear to be fully 

 confirmed by the provisions of s. 11, 

 sub-s. 1 of the Sale of Goods Act, 

 1893, ante, p. 108. 



