PLEADING AND EVIDENCE FOE, THE PLAINTIFF. 173 



defendant 51. on the buying of another horse ; it was held 

 to be no variance, as the conditional promise omitted in 

 the declaration was too vague to be legally enforced, and 

 did not amount to a promise in point of law (t). 



If any one substantive part of a warranty be proved not statement of 

 to be true, there is a breach on which an action may ^^'^ promise or 

 be maintained, and it is sufEcient that the plaintiff set ''^^"'^'^ y- 

 out all the substantive and material parts of the contract, 

 the breach of which he complains of, the parts omitted 

 not qualifying in any manner the sense of those parts 

 set out upon which the breaches are assigned. As where 

 the plaintifP declared that in consideration of his re- 

 delivery to the defendant of an unsound horse, the defen- 

 dant promised to deliver to him another horse in lieu, 

 which should be worth 80/. and be a young horse, and 

 then alleged a breach in both respects, it was held suffi- 

 cient, though it was proved that the defendant had also 

 promised that the horse was sound and had never been in 

 harness (u). 



And where there was a private sale of a mare at a Condition 

 repository, and a warranty of soundness was given, but ^'iiK'xed to the 

 there was a notice of the rules of sale, by which no warranty. 

 warranty was to remain in force after twelve o'clock the 

 following day, the Court of Exchequer held it sufficient to 

 declare on the warranty alone without the condition annexed 

 to it. However, Mr. Baron Parke said, "If the matter 

 relating to the notice had been by way of proviso upon the 

 warranty, it might perhaps have been necessary to state 

 it in the declaration, but upon that point I give no 

 opinion " («). 



Where the consideration is executory/, it is necessary for The purchase 

 the plaintiff to prove the performance of the consideration a^d the pay- 

 on his part, that is to say, the purchase, in order to show 

 that he possesses a right of action (y). And as the price 

 has usually been paid when an action is brought on a 

 breach of warranty, the payment, if made, will be included 

 in an averment of performance of conditions precedent (s), 

 but pajnnent is not essential to support the action. 



If the false warranty or misrepresentation be misstated. Statement of 



the false 



(t) Out/iinff V. Ii/mi, 2 B. & Ad. 728. 

 232 ; and see Saxbi/ v. Wilkin, 1 D. & («/) See Bui. N. P. 146 ; and Hint/ 



L. 281. V. Roxbrough, 2 Tyr. 468 ; -S. G., 2 



(u) Miles V. Sheward, 8 East, 7 ; C. & J. 418 ; and 1 Chit. Pleading, 



Clarke v. Grai/, 6 East, 568. 6th ed. 296. 



{x) Smart v. Si/de, 8 M. & W. (z) See Order XIX. r. 14. 



