164 



BREACH OF WARRANTY. 



Or unfit for 

 a particular 

 purpose. 



Verbal offer 

 after sale to 

 take back the 

 hor^e. 



Or the con- 

 tract becomes 

 complete. 



Where buyer 

 should tender 

 the horse. 



Sale after 

 tender. 



be returned, if unsuitable, they would not be returnable on 

 a disapproval which is not bona fide, or which is merely 

 capricious (y). But in a case in which an order for a 

 carriage had been given and accepted on the express condi- 

 tion that the carriage should meet the approval of the 

 defendant on the score of convenience and taste, it was 

 held, that he was entitled (acting bond fide, and not from 

 mere caprice) to return it (s). 



Where a horse is bought, warranted fit for a particular 

 purpose, and he proves unfit for that purpose, it has been 

 held, that the purchaser may return him and bring an 

 action for the price, if paid («) . 



But where, after a warranty of a horse as sound, the 

 vendor, in a subsequent conversation, said, that if the horse 

 icere unsound (which he denied) he ivould take it again and 

 return the money, it was held, that this was no abandonment 

 of the original contract, which still remained open ; and 

 that though the horse be unsound, the vendee ought to sue 

 upon the warranty, and could not maintain an action for 

 money had and received, to recover back the price after a 

 tender of the horse {b). 



If goods delivered on " sale or return " be not returned 

 within a reasonable time, or the return of them be ren- 

 dered impossible by the act of the buyer, the contract of 

 sale becomes complete, and an action for goods sold and 

 delivered may be maintained by the seller (c) . 



Where a breach of warranty has taken place it is pru- 

 dent for the buyer, in an ordinary case, to tender the horse 

 back to the seller immediately on discovering such breach {d) ; 

 and so entitle himself to be repaid the expenses he has 

 been put to in keeping him (c) ; and if the seller receive 

 him back there will be a mutual rescission of the original 

 contract (/). 



But where the seller refuses to take back the horse, he 

 should be sold as soon as possible for the best price that 

 can be procured {g). And, perhaps, the best course to be 



[y) Dallman v. Kiug^ 5 Scott, 

 382. 



(z'l Andrews v. Belfield, 2 C. B., 

 N". S. 779. 



[a] Chanter y. Hopkins, 4 M. & 

 W. 400 ; but see Daioson v. ColUs, 

 10 C. B. 523. 



(h) Fmjne v. Whale, 7 East, 274. 



[c) Moss T. Sweet, 16 Q. B. 493 ; 

 20L. J., Q.B. 167; 16 L. T., 0. S. 

 341. See also s. 18, I. 4 of the Sale 



of Goods Act, 1893. 



(d) Selwyn'sN. P.,8thed.,vol. i., 

 p. 657, tit. Deceit, I. 2, cited in 

 Chestermaii v. Lamb, 2 A. & E. 129. 



[e] Chesterman r. lamb, 2 A. & 

 E. 129 ; Cross v. Bartlett, 3 M. &P. 

 542. 



(/) Weston v. Doiciies, Doug. 24. 

 iff) Caswell V. Coare, 1 Taunt. 

 566; 10 R. E. 606. 



