When maintain able. Fraud. that, "where an article is ordered from a manufacturer who contracts that it shall be of a certain quality, or fit for a particular purpose, and the article sent as such is never completely accepted by the party ordering it: in this, and in similar cases, the latter may return it as soon as he discovers the defect, provided he has done nothing more in the meantime than was necessary to give it a fair trial" (u). 4. Lastly, where the purchaser can establish a case of actual fraud, he will be entitled to rescind the contract, and sue in assumpsit for money had and received to recover back the price (r); as, where a valuable commodity is bargained for, and (u) Giles v. Edwards, 7 T. R. 181; Clarke v. King, Ry. & Moo. 394; S. C. 2 C. & P. 286; Wright v. Newton, 2 Cr. Mees. & R. 124; Lowry v. Bourdieu, 2 Dougl. 471, per Buller, J. The principle of this distinction appears to be, that, as long as the contract is executory, compliance with the warranty is quasi a condition precedent. Such a case, however, can scarcely often occur: for, generally speaking, by payment of the price the property passes to the purchaser, and the contract ceases to be executory; and it is only when the price has been paid that the question can arise. An analogous distinction is taken in respect of cases, where money has been paid with a view to an illegal contract. As long as the contract remains executory, the money may be recovered back, (Tappenden v. Randall, 2 B. & P. 467, Aubert v. Walsh, 3 Taunt. 277); but after it is executed, the money cannot be recovered, (Howson v. Hancock, 8 T. R. 575). (x) See Steward v. Coesveldt, 1 C. & P. 23. See above, p. 129. maintain the vendor furnishes a quantity of rubbish in- When stead (y). able. Parallel to the case of fraud, is the case of pay- Mistake. ment by the purchaser, through mistake, of a greater sum than he ought to have paid. Thus, where the plaintiff agreed to buy a bar of silver, and to make payment according to the value expressed in the assay-master's certificate, it was held—an over-valuation having been accidentally made, and an excessive payment having taken place in consequence of the mutual error-that the plaintiff might rescind the contract, and maintain an action against the vendor for money had and received (≈). Le Blanc J. said, that it was true, as a general rule, that, when an article is sold which turns out to be of less value than the price given, the extra price, if there be no fraud, cannot be recovered back; yet, that the rule applied only to cases where the thing was of arbitrary value (a.) fraud. However, even where there has been actual Waiver of fraud, the purchaser, by adopting the contract after discovering the fraud, may preclude himself from rescinding it and recovering back the money paid (b); although, had it not been completed, no (y) Fortune v. Lingham, 2 Campb. 417; per Lord Ellenborough, C. J. (z) Cox v. Prentice, 3 M. & S. 344. See Milnes v. Duncan, 6 B. & C. 671. (a) 3 M. & S. 349. (b) Campbell v. Fleming, 3 Nev. & Man. 834; S. C. 1 Ad. & Ell. 40. Semble, the rule is not altered even though the pur Fraud. action could have been sustained by the vendor to enforce performance (c). ACTION ON WARRANTY. Where the purchaser relies on a warranty, and the gist of the action is the breach of the undertaking, whether express or implied, he may frame his action either in assumpsit or in tort (d). To support his case, in either form of action, he must prove; 1st, the contract of warranty; 2ndly, the breach; 3rdly, the damages which he has sustained. I. PROOF OF THE WARRANTY. 1. Express Warranty. Every affirmation made by the vendor at the time of the sale amounts to a warranty, provided chaser have afterwards discovered an additional incident in the fraud; See the observations of the judges, ibid. (c) 3 Nev. & Man. 837, per Patteson, J. (d) The ancient method of declaring was in tort, laying the gravamen not on the deceit but on the warranty broken; and as the gist of the action was the breach of the contract, the scienter though alleged was unnecessary to be proved; see below, p. 349. But since the case of Stuart v. Wilkins, (1 Dougl. 18), which first established the mode of declaring in assumpsit, the latter has been adopted in modern practice for the convenience of adding the money counts; (see 2 East, 448, 451; Selw. N. P. 657; Doug. 20, n.) It seems, however, to be quite immaterial now whether the form of action be ex contractu or ex delicto, as the plaintiff can no longer avail himself of the money counts. (See a declaration 66 warranty. it appear in evidence to have been so intended (e). Express It is not necessary that the words "warrant," or warranty," should be used (ƒ): thus, it was held, that a representation made by a seller in the course of a conversation relating to the contract, that the buyer "might depend upon it that the horse was perfectly quiet and free from vice," was held to amount to a warranty (g). And a declaration by the defendant, that he "could warrant" the chattel sold, is equivalent to an express undertaking (h). So, a bare affirmation by the seller, that the chattel is his own, amounts to a warranty of the title (i). So, even if the defendant expressly declined to war in case for breach of warranty, 1 Ad. & Ell. 508.) An obvious distinction may be noticed in respect of the effect of the general issue in each form of action. The plea of non assumpsit would clearly put in issue the warranty, and not the breach; while the plea of not guilty would admit the warranty, but deny the breach. (See Rules Hil. T. 4 Will. IV., Assumpsit and Case. And see above, pp. 284, 5, and 317, note (g). (e) See per Buller, J., 3 T. R. 57; per Bayley, J., 4 C. & P. 46. (f) 3 Man. & Ry. 4; 1 Stark. N. P. C. 505. (g) Cave v. Coleman, 3 Man. & Ry. 2. (h) Button v. Corder, 7 Taunt. 405. (i) Medina v. Stoughton, 1 Salk. 210; S. C. Holt, 208. It is said in Holt and Salkeld that the chief justice took the distinction, that such affirmation amounted to a warranty only when the seller was in possession at the time; for if the seller be out of possession, then there is room to question his title. But the distinction has been doubted (3 T. R. 57, 58, per Buller, J.); and it is not adverted to in the report of the case, 1 Ld. Raym. 593. See Bull. N. P. 30; 1 Salk. 211, n.; Robinson v. Anderton, Peake, 94. Express warranty. Proof. rant, but affirmed that he "believed the chattel to be sound," the purchaser may declare as upon a warranty that the chattel was sound to the best of the vendor's knowledge (k). The undertaking by the vendor may be proved by a receipt, containing the terms of the warranty, and signed by the vendor (); or, by the invoice or bill of parcels in which the goods are stated to be of a particular quality or description (m). It is sufficient if the warranty is acknowledged in a subsequent letter written by the defendant to the plaintiff, referring to his representations made at the time of the sale (n). But if the plaintiff attempts to show that a document, which contains the alleged warranty, is part and parcel of the original contract, he must establish a distinct connection between them: thus, where the agreement was, to deliver a vessel and stores according to the inventory, and it appeared that the sellers had carefully endeavoured to make a distinction between the description and the enumeration, both of which were contained in an advertisement, it was held, that the whole description contained in the advertisement could not have been intended to be embodied in the agreement, but that the word (k) Wood v. Smith, 5 Man. & Ry. 124; S. C. M. & Malk. 539. (1) Skrine v. Elmore, 2 Camp. 407; see 7 Bingh. 574. (n) Salmon v. Ward, 2 C. & P. 211. |