The right to return a horse sold with a Warranty which proves incorrect, is not taken away by the fact that the buyer, before removing him, might have found out that the Warranty was untrue, or by the fact that the Horse whilst it is in the buyer's possession is injured without his default, by an accident arising from a defect inherent in the Horse (t). Thus, in Head v. Tattersall (u), the plaintiff Head v. Tatbought a Mare, warranted to have been hunted with tersall. certain packs of hounds. According to the terms of the sale, the Mare, if objected to, was to be returned within a specified time. The plaintiff paid for the Mare, but before removing her from the defendant's establishment he was informed by some person that the Warranty was incorrect. The Mare, whilst she was being taken away by the plaintiff's groom, became restive and received serious injury. The plaintiff returned her within the specified time. The Warranty was in fact untrue. The plaintiff brought an action to recover the price of the Mare, and it was held that nothing that had happened took away the plaintiff's right to return the Mare, and that he was entitled to succeed. Where a Horse is bought on condition that he is to be Or unsuitreturned if he does not suit, as the contract for sale is not able. absolute, the Horse may be returned, and an action brought for the price, if paid, as Money had and received to the use of the plaintiff (x). But the purchaser must not keep him longer than is necessary for trial, nor exercise the dominion of an owner over him, as by selling him (). Such an action was brought in the following case, to recover ten guineas which the plaintiff had paid to the defendant for a one Horse Chaise and Harness, on condition that it was to be returned in case the plaintiff's wife should not approve of it, paying 3s. 6d. per diem for the hire of it. This contract was made by the defendant's servant, but his master did not object to it at the time. The plaintiff's wife not approving of the Chaise, it was sent back at the expiration of three days, and left on the defendant's premises, without any consent on his part to receive it; the hire of 3s. 6d. per diem was tendered at the same time, which the defendant refused, as well as to return the money. A verdict was found for the plaintiff. (t) Head v. Tattersall, L. R., 7 Ex. 7; 41 L. J., Ex. 4; 25 L. T., N. S. 631. (") L. R., 7 Ex. 7; 41 L. J., Ex. 4; 25 L. T., N. S. 631. (x) Towers v. Barrett, 1 T. R. 133. (y) Street v. Blay, 2 B. & Ad. 456. Or unfit for a particular purpose. Verbal offer after sale to take back the Horse. Where goods turned imme And a rule to show cause why a nonsuit should not be entered, on the ground that this action for Money had and received would not lie, was discharged (). Where goods are bought on condition that they should be returned, if unsuitable, they would not be returnable on a disapproval, which is not bonâ fide, or which is merely capricious (a). But in a case in which an order for a carriage had been given and accepted on the express condition 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 file, and not from mere caprice) to return it (b). 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 (c). But where, after a Warranty of a Horse as sound, the vendor, in a subsequent conversation said, that if the Horse were Unsound (which he denied) he would 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 (d). A buyer who rejects goods sent to him as not being should be re- equal to sample, is bound to return them immediately, if it can be done without injury to the goods. He has no right to retain them in security of his claim of damages. for non-performance of the contract (e). diately. Or the contract becomes complete. Where buyer 66 If goods delivered on sale or return" be not returned within a reasonable time, or the return of them be rendered 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 (f). Where a Breach of Warranty has taken place it is (2) Towers v. Barrett, 1 T. R. 138. (a) Dallman v. King, 5 Scott, 382. (b) Andrews v. Belfield, 2 C. B., N. S. 779. (c) Chanter v. Hopkins, 4 M. & W. 400; but see Dawson v. Collis, 10 C. B. 523. (d) Payne v. Whale, 7 East, 274. (e) Padgett v. Macnair, 15 Court of Sess. 76 (Sco.); S. C. 2 S. M. & P. 41; S. C. 4 M. Dig. 187. (f) Moss v. Sweet, 16 L. T. 341; S. C. 20 L. J. 167 (Q. B.); S. C. 16 Q. B. 493. In the case of Steinthal v. Myers, Nov. 23, 1855 (Cor. Brandt, County Court, Manchester), a month was held to be a reasonable time to keep a Horse on sale or return. prudent for the Buyer, in an ordinary case, to tender the should tender Horse back to the Seller immediately on discovering such the Horse. Breach (g); and so entitle himself to be repaid the expenses he has been put to in keeping him (); and if the Seller receive him back there will be a mutual rescission of the original contract (i). tender. But where the Seller refuses to take back the Horse, Sale after he should be sold as soon as possible for the best price that can be procured (j). And, perhaps, the best course to be pursued under such circumstances is to sell him by public auction, for in that way the true market value, which is the proper measure of damages, can best be discovered (k). der. If the buyer does not wish to tender the Horse, he Notice inshould at any rate give Notice of the Breach of Warranty, stead of tenbecause the not giving Notice will be strong presumption against the Buyer that the Horse, at the time of sale, had not the defect complained of, and will make the proof on his part much more difficult (7). And unless the Breach in such case is clearly established, the Jury will naturally suppose that the Horse corresponded with the Warranty (m). Notice. The longer the time before Notice, or bringing an Length of action after discovering the Breach of Warranty, the time before greater will be the difficulty in making out a good case to a Jury (1). But where the Breach of Warranty can be clearly proved, the length of time before Notice does not appear material. For the Court of King's Bench, in a case where an Unsound Horse was sold with a Warranty of Soundness, decided that the Buyer might maintain an action on the Warranty, although shortly after the sale he had discovered the Unsoundness, and, without giving Notice of that fact to the Seller, had kept and used the Horse for nine months as his own, during which period he had given him physic, and used other means to cure him; he had also cut the Horse's tail. The case had been tried at the Hereford Assizes before Mr. Justice Parke, who directed a nonsuit. However, in the ensuing term a rule was obtained to set that nonsuit aside, and for new trial, the (g) Selwyn's N. P. 8th ed., vol. i. p. 657, tit. Deceit, I. 2, cited in Chesterman v. Lamb, 2 A. & E. 129. (h) Chesterman v. Lamb, 2 A. & E. 129; Cross v. Bartlett, 3 M. & P. 542. (i) Weston v. Downes, Doug. 24. (j) Caswell v. Coare, 1 Taunt. 566. (1) Fielder v. Starkie, 1 H. Bla. 17. Seller should have the Horse examined. Breach of defence to cases of Fielder v. Starkie (n), and Caswell v. Coare (0) being referred to. In showing cause, it was contended that Fielder v. Starkie (n) was overruled, or at least qualified, by subsequent cases; but Lord Denman, with the assent of Justices Littledale, Patteson and Coleridge, said, "We think that Fielder v. Starkie is not overruled. The rule must be absolute" (p). The Seller, on receiving Notice of a Breach of Warranty, should have the Horse examined by some skilful person, and so ascertain the exact state of the case. If he find that the Warranty is broken, or that there is doubt, he had better either take back the Horse, or come to what terms he can with the Buyer, as Horse causes are decided in a great measure by the strength of Veterinary testimony. But if he find that there is really no Breach of Warranty, the evidence of the party who has examined the Horse, will place him in a favourable position in case an action should be brought. It seems that if a Bill of Exchange or Promissory Note Warranty no has been given for goods, which were warranted to be of a particular quality or description, the buyer has no defence, even pro tanto, to an action brought upon the Bill or Note by the Seller, merely upon the ground that the goods are of an inferior quality or description (g). action on Bill of Exchange. Unless there be a total failure of But he may defend on the Bill or Note in toto, if an action be brought by the seller, where there has been a consideration. total failure of consideration, provided the buyer has repudiated the contract; the difference being between an action for the price of goods, and an action upon the security given for them (r). Sale by order of Court. In an action for the Breach of Warranty of a Horse, an order may be made under Ord. LII. r. 2 (Judicature Act, Sched.), for the sale of the Horse, as "goods which for some just and sufficient reason it may be desirable to have sold at once" (8). 17. (n) Fielder v. Starkie, 1 H. Bla. (0) Caswell v. Coare, 1 Taunt. 566. (p) Pateshall v. Tranter, 3 A. & E. 103; S. C. 4 Nev. & M. 649. (7) See Chit. Contr. 11th ed. 678, and the cases there cited; Moggridge v. Jones, 3 Camp. 38; Knox v. Whalley, 1 Esp. 159. (r) See Chit. Contr. 11th ed. 678, and the cases there cited. (s) Bartholomew v. Freeman, L. R., 3 C. P. D. 316; 38 L. T., N. S. 814; 26 W. R. 743. |