162 



BREACH OF WARRANTY. 



Goods are re- 

 turnable 

 where there is 

 fraud. 



Agreement 

 that a horse 

 is to be re- 

 turned if 

 unsound. 



breach of a condition on the part of the seller as a breach 

 of warranty, the buyer is not by reason only of such breach 

 of warranty entitled to reject the goods ; but he may 



(a) set up against the seller the breach of warranty in 



diminution or extinction of the price ; or 



(b) maintain an action against the seller for damages for 



the breach of warranty. 



(4.) The fact that the buyer has set up the breach of 

 warranty in diminution or extinction of the price does not 

 prevent him from maintaining an action for the same breach 

 of warranty if he has suffered further damage. 



(5.) Nothing in this section shall prejudice or affect the 

 buyer's right of rejection in Scotland as declared by this 

 Act." 



The buyer may elect to treat any breach of a condition on 

 the part of the seller as a breach of warranty under section 11, 

 sub-section (1) (a), ante, pp. 108, 109, and be compelled 

 to do so under section 11, sub-section (I) (c), ante, p. 109. 



In an unconditional warranty, the only ground on which 

 goods are returnable is that of fraud. And ]\Ir. Baron 

 Parke, referring to the case of Street v. Biaij (q), said, 

 " When a horse is warranted sound, and turns out other- 

 wise, the purchaser has no right to return him, unless the 

 warranty was fraitdiiknt ; his only remedy is an action on 

 the warranty ; this has been fateli/ settled, but the general 

 impression formerly among the profession, and now 

 amongst all others, is, that the purchaser is to return the 

 horse " (r). 



But if on the sale of a horse there be an express warranty 

 by the seller that the horse is sound, free from vice, &c., 

 yet if it be accompanied with an undertaking on the part of 

 the seller to take back the horse and repay the purchase- 

 money, and on trial he shall be found to have any of the 

 defects covered by the warranty, the buyer must return him 

 as soon as he discovers any of those defects, unless he has 

 been induced to prolong the trial by any subsequent mis- 

 representation of the seller, because in such case a trial 

 means a reasonable trial (s). 



The right to return a horse sold with a warranty which 

 proves incorrect, is not taken away by the fact that the 

 buyer, before removing him, might have found out that the 



(j) street y. Blmj, 2 B. & Ad. 

 456. 



(r) EiUiard v. Orbell, Ex. Sit- 

 tings, Jan. 11, 1834. See also 



Houldsworth v. City of Glmgow 

 Bank, 5 App. Cas. 317. 



(s) Adam v. Richards, 2 H. Bla 

 573; 3 R. R. 508. 



