PLEADING AND EVIDENCE FOR THE DEFENDANT. 185 



Acts a breach of warranty may be pleaded by way of 

 counterclaim in such an action (§'). 



However, it is only reasonable and just that when an Evidence in 

 action is brought by the seller to recover the price or value "^eduction of 

 01 a horse or any other goods, that the buyer should be at 

 liberty to show the breach of warranty in reduction of 

 damages (r). 



And where a horse is bought warranted sound, and part Defence for 

 of the price is paid, and on turning out unsound, he is "^^^}^^^^ °* '^® 

 found to be worth no more than that sura, it is a good 

 defence to an action for the residue. Thus in the following 

 case, it appeared that the plaintiff sold to the defendant a 

 horse, warranted sound, for twelve guineas, of which the 

 defendant had paid three. In fact, the horse was not 

 sound ; and the defendant refusing to pay any more, an 

 action was brought to recover the residue of the horse's 

 price. It was proved that the horse, at the time of sale to 

 the defendant, was not worth more than 1/. lis. Qd., and 

 the defendant afterwards sold it for 1/. 10s. On these 

 facts Lord Kenyon held that the plaintiff could only recover 

 the value ; and more having been paid to him by the 

 defendant, he was nonsuited (s). 



Where an action is brought to recover back the price Defence for 

 paid for a horse, on failure of consideration, as money had "^^^^1 ^^^^^ 

 and received, the defendant may show that he never received 

 the price, or that he never warranted, or that there was no 

 breach of warranty, or that there was no rescission of the 

 contract, or that there was no power to rescind, or no tender 

 of the horse, or that being sold on trial, it was kept longer 

 than was necessary for such trial {t). 



The defendant in an action ow a breach of ivarranty ma.y Defence to an 

 deny the warranty, or he may show that, at the time of ^"^ "^"^^ '^ 

 sale, the horse ansicered his ivarraniy, whether it were warranty. 

 soundness, freedom from vice, fitness for a particular 

 purpose, &c. (ii). 



The defendant may prove that the warranty was added Surreptitious 

 to the form of receipt unknown to him. Thus, in an action '^^'^'^^° ^■ 

 brought on the warranty of a horse, the jury gave a verdict 



(q) Order XIX. r. 3. (s) King v. Boston, cited 7 East, 



(?•) Foulton T. Lattimore, 9 B. & 481.. 



C. 265; MondelY. Steel, 8 M. &"W. [t) Street v. Blay, 2 B. & Ad. 



858 ; <S. C, 1 D. N. S. 8 ; Farsonsy. 456 ; and see Dawson v. Collis, 10 



Sexton, 4 C. B. 908 ; S. C, 16 L. J., C. B. 532. 



C. P. 184. See also s. 53, sub-s. (1), («) See evidence as to Unsound- 



(a) of the Sale of Goods Act, 1893, ness, Vice and Unfitness, ante, p. 



ante, p. 162. 182. 



