PLEADING AND EVIDENCE FOE THE PLAINTIFF. 



177 



account was stated, that a balance was then struck and 

 agreed upon, and that the defendant then expressly ad- 

 mitted that a certain sum was then due from him to the 

 plaintiff («). 



Where an action is brought on a breach of warranty, and 

 the warranty is denied, the plaintiff must prove the fact of 

 the sale and warrantxj having been given. If the breach is 

 traversed the onus lies upon him to prove the unsoundness 

 or vice, or whatever is alleged as the subject-matter of the 

 breach (y). And of course he must in all cases prove 

 damage whether general or special. 



where there is evidence of fraud, it should be alleged in 

 addition to a breach of warranty, where it is doubtful 

 whether a warranty can be proved (s). For if a statement 

 of claim discloses a state of facts, upon which an action may 

 be maintained without fraud, fraud need not be proved, 

 though it be alleged ; and the plaintiff may recover upon 

 the facts disclosed, though fraud be alleged and dis- 

 proved (a). But where the plaintiff relies on fraud alone 

 and does not succeed, he cannot pick out facts which would 

 otherwise have entitled him to reHef apart from the 

 fraud (b). 



Where no warranty exists in the contract, but the con- 

 tract is induced by false representation, known by the seller 

 to be false, the action is grounded on the fraud, and should 

 be so framed (c) ; for the knowledge of the defendant is in 

 such case essential to the cause of action (d) . 



Where an action is brought for fraudulent representation 

 on the sale of a horse, the plaintiff should be prepared 

 to prove the ivrongful act alleged to have been com- 

 mitted by the defendant, namely, the sale by means of 

 ^e fraudulent representation (e) ; and it is essential to show 

 that there was a sale and also a misrepresentation (/) ; 

 and he must give proof of damage whether general or 

 special ((/). 



Proof in an 

 action for 

 breach of 

 warranty. 



Where it is 

 doubtful 

 whether war- 

 ranty is prove - 

 able. 



Proof in an 

 action for 

 fraudulent 

 representa- 

 tion. 



(x) See Chit. Coutr. 12th ed. 109, 

 and the authorities there cited. 



(y) Osborn v. Thompson, 9 C. & P. 

 337 ; 1 Tayl. Evid. 337. 



(s) Bullen & Leake's Pleadings, 

 4th ed. 428. 



{a) Swinfen v. Zord Chelmsford, 5 

 H. & N. 893, 921. Per Parke, B., 

 Tliom V. JBigland, 8 Ex. 725. 



(S) Hudson r. Lombard, L. E., 1 

 H. L. 324; London Chartm-ed Sank 

 of AiKtralia v. Lempriere, L. E., 4 



O. 



P. C. 572 ; Noad v. Marrow, 40 

 L. T., N. S. 100. 



(e) Ormrod v. Suth, 9 C. & P. 

 337. 



(d) PasUy v. Freeman, 2 Sm. 

 L. C. 9th ed. 74. 



(e) Per Cresswell, J., Mummery v. 

 rani, 1 C. B. 327. 



(/) Per Erie, J., Ibid. 

 ijj) Per Bramwell, B., Eastwoody. 

 Bain, 28 L. J., Ex. 74. 



N 



