160 



BREACH OF WARRANTY. 



Unfitness for 

 a particular 

 purpose. 



An interme- 

 diate profit. 



Acts of 

 ownership in- 

 consistent 

 with trial. 



breach of the warranty may be given in evidence in miti- 

 gation of damages, on the principle, as it should seem, of 

 avoiding circuity of action (k) ; and there is no hardship 

 in such a defence being allowed, as the plaintiff ought to 

 be prepared to prove a compliance with his warranty, 

 which is part of the consideration for the specific price 

 agreed by the defendant to be paid." 



"It is to be observed, that although the vendee of a 

 specific chattel, delivered with a warranty, may not have a 

 right to return it, the same reason does not apply to cases 

 of executory contracts, where an article, for instance, is 

 ordered from a manufacturer, who contracts that it shall 

 be of a certain quality, or fit for a certain purpose, and the 

 article sent as such is never completely accepted by the 

 party ordering it. In this and similar cases the latter may 

 return it as soon as he discovers the defect, provided he has 

 done nothing more in the meantime than was necessary to 

 give it a fair trial " (/). 



"The observations above stated are intended to apply 

 to the purchase of a certain specific chattel, accepted and 

 received by the vendee, and the property in which is com- 

 pletely and entirely vested in him." 



" But whatever may be the right of the purchaser to 

 return such a warranted article in an ordinary case, there 

 is no authority to show that he may return it where the 

 purchaser has done more than was consistent with the 

 purpose of trial, where he has exercised the dominion of 

 an owner over it, by selling and parting with the property 

 to another, and where he has derived a pecuniary benefit 

 from it. These circumstances concur in the present case ; 

 and even supposing it might have been competent for the 

 defendant to return this horse, after having accepted it 

 and taken it into his possession, if he had never parted 

 with it to another, it appears to us that he cannot do so 

 after the re-sale at a profit." 



" These are acts of ownership wholly inconsistent with 

 the purpose of trial, and which are conclusive against the 

 defendant that the particular chattel was his own ; and it 

 may be added that the parties cannot be placed in the 

 same situation by the return of it as if the contract had 

 not been made, for the defendant has derived an inter- 

 mediate benefit in consequence of the bargain, which he 



(k) Cormack T. Gillis, cited 7 East, 

 480 ; King v. Boston, 7 East, 481, n. ; 

 and see Samson v. CoUis, 10 C. B. 



532. 



(?) Okell v. Smitrt, 1 Stark. N. P. 

 C. 107; 18 R. E. 752. 



