Salisbury Cathedral by John Constable was what Ernest Louis Leaf thought he was buying on 8 March 1944 from International Galleries.

At a very late stage before the county court judge counsel did ask for leave to amend by claiming damages for breach of warranty, but it was not allowed.

The way in which the case is put by Mr. Weitzman, on behalf of the plaintiff, is this: he says that this was an innocent misrepresentation and that in equity he is, or should be, entitled to claim rescission even of an executed contract of sale on that account.

The parties were agreed in the same terms on the same subject-matter, and that is sufficient to make a contract: see Solle v Butcher.

I think it right to assume in the buyer's favour that this term was a condition, and that, if he had come in proper time he could have rejected the picture; but the right to reject for breach of condition has always been limited by the rule that, once the buyer has accepted, or is deemed to have accepted, the goods in performance of the contract, then he cannot thereafter reject, but is relegated to his claim for damages: see s. 11, sub-s. 1 (c), of the Sale of Goods Act 1893, and Wallis, Son & Wells v Pratt & Haynes.

In this case the buyer took the picture into his house and, apparently, hung it there, and five years passed before he intimated any rejection at all.

Although rescission may in some cases be a proper remedy, it is to be remembered that an innocent misrepresentation is much less potent than a breach of condition; and a claim to rescission for innocent misrepresentation must at any rate be barred when a right to reject for breach of condition is barred.

A condition is a term of the contract of a most material character, and if a claim to reject on that account is barred, it seems to me a fortiori that a claim to rescission on the ground of innocent misrepresentation is also barred.Jenkins LJ and Lord Evershed MR concurred.