158 



BREACH OF WARRANTY. 



Judgment of 

 the Court of 



with a considerable portion of the judgment delivered by- 

 Lord Tenterden. The facts of the case were these : The 

 plaintiff, on the 2nd of February, sold a horse to the de- 

 fendant for 43/. with a warranty of soundness. The defen- 

 dant took the horse, and on the same day sold it to one 

 Bailey for 45/. Bailey, on the following day, parted with 

 it in exchange to one Osborne ; and Osborne, in two or 

 three days afterwards, sold it to the defendant for 30/. 

 No warranty appeared to have been given on any of the 

 three last sales ; the horse was, in fact, unsound at the 

 time of the first sale, and on the 9th of February the 

 defendant sent the horse back to the plaintiff's premises, 

 requiring the plaintiff to receive him again as he was 

 then lame ; but the plaintiff refused to accept him. The 

 question for consideration was, whether the defendant, 

 under these circumstances, had a right to return the horse, 

 and thereby exonerate himself from the payment of the 

 whole price ? 



After taking time to consider. Lord Tenterden, in de- 

 livering the judgment of the Court, said, " It is not neces- 

 mgs enc . ^^^^ ^^ decide whether in any case the purchaser of a 

 specific chattel, who, having had an opportunity of exercising 

 his judgment upon it, has bought it with a warranty 

 that it is of any particular quality or description, and 

 actually acce2^tecl and received it into his possession, can 

 afterwards, upon discovering that the warranty has not 

 been complied with, of his own will only, without the con- 

 currence of the other contracting party, return the chattel 

 to the vendor and exonerate himself from the payment of 

 the price, on the ground that he has never received that 

 article which he stipulated to purchase." 



"There is indeed authority for that position. Lord 

 Eldon, in the case of Curtis v. Hcmnay {cT), is reported to 

 have said, that he took it to be clear law, that if a person 

 purchases a horse which is warranted sound, and it after- 

 wards turns out that the horse was unsound at the time of 

 the warranty, the buyer might, if he pleased, keep the 

 horse and bring an action on the warranty, in which he 

 would have a right to recover the difference between the 

 value of a sound horse and one with such defects as ex- 

 isted at the time of the warranty ; or he might return the 

 horse and bring an action to recover the full money paid ; but 

 in the latter case the seller had a right to expect that the 



Lord Eldon's 

 opinion dis- 

 cussed. 



{ctj Curtis V. Bannay, 3 Esp. S3. 



