BREACH OF WARRANTY. 161 



would still retain. But lie is entitled to reduce the damages, 

 as he has a right of action against the plaintiff for the 

 breach of warranty " (m). 



In another case, where the question of return was con- Confirmed by 

 sidered, the law laid down by the Court of Queen's Bench ^ ^^^"^ ''^^'^• 

 was confirmed by the Court of Exchequer. And Mr. Baron 

 Bayley said, " One party cannot rescind the contract unless 

 the other party agrees to it. The contract of warranty was 

 open, and entitled the plaintiff to recover damages for the 

 breach of it, but did not entitle him to return the horse, 

 and rescind the contract. In Street v. Bla-j/ (m), the law 

 on this subject was fully considered by the Court of King's 

 Bench, and it was there laid down that a purchaser has no 

 right to return the article, unless there has been a condition 

 in the original contract authorizing the return, or the 

 vendor has subsequently consented to rescind the contract, 

 or unless the case turn out to be one of fraud. According 

 to Poiver V. Welles («), if the contract is still open, you 

 cannot maintain an action for money had and received ; I 

 take the rule to be, that if the contract remains open, so as 

 to give the party a right to recover damages for a breach of 

 warranty, he cannot maintain an action of indebitatus 

 assumpsit on the ground of the failure of consideration." 



And Lord Lyndhurst said, " There was a proposition in 

 this case to rescind the contract, which the defendant was 

 at first willing to accede to, but the agreement to rescind 

 was never completed, therefore the contract remained open. 

 One party alone could not, by his own act, rescind the con- 

 tract. The case of Street v. Blay (o) seems to have been 

 very much considered. That case shows that you cannot 

 treat a contract as rescinded on the ground of the breach of 

 warranty, except there was an original agreement that the 

 party should be at liberty to rescind in such case, or unless 

 both parties have consented to rescind it. According to 

 that decision, which is the most recent, your remedy was an 

 action for damages " (p). 



The remedy for breach of warranty is concisely stated by Remedy for 

 section 53 of the Sale of Goods Act, 1893, which, in so far ^^^J^^^^, 

 as it deals with such remedy, is in the following terms : — 



(1.) " Where there is a breach of warranty by the seller, 

 or where the buyer elects, or is compelled, to treat any 



(m) Street v. JBlai/, 2 B. & Ad. 456. 

 456. {p) Gompertz v. Denton, 1 Cr. & 



(■«) Fower v. Welles, Cowp. 818. M. 207. 

 (o) Street v. Blat/, 2 B. & Ad. 



O. M 



