And Pollock, C. B., said:

"The utmost that took place was a representation that the barley was seed barley." 33

In Stucley v. Baily,34 certain representations contained in letters in regard to a yacht bought by the plaintiff of the defendant were held at the trial to amount to a warranty, and a verdict was directed for the plaintiff. A rule was made absolute for a new trial on the ground that the evidence should have been submitted to the jury. Pollock, C. B., said:

"If, at an interview before the correspondence, the plaintiff said to the defendant 'I want to buy your vessel,' and the defendant replied, 'very well; the price is so and so,' adding, 'she is sound,' but never intending to warrant her; that, though falling very far short of conclusive evidence, might be important as shewing the meaning of the transaction.” 35 Bramwell B., said:

"No doubt a representation made at the time of the contract may amount to a warranty. If a man, when he sells a horse, says it is sound, that is a matter of fact; and when he makes a positive statement of that kind, he undertakes that he knows the fact; and if it is not so, he tells an untruth. So, if he does not know the fact, he equally tells an untruth, and there is no reason why he should not be responsible. I should be more inclined to hold a person liable upon a representation as to a matter of fact of that kind than as to a matter out of his ordinary knowledge. For instance, suppose a man says a horse is sound, and it turns out that it has some defect which it was impossible that he could have known, I doubt whether his language ought to be interpreted as a warranty." 36

In Cowdy v. Thomas 37 the plaintiff bought of the defendant a second-hand locomotive in regard to which the seller had written, among other things, "firebox and tubes are copper." The verdict was taken for the plaintiff with leave reserved to set the verdict aside. The verdict was, however, sustained. Kelly, C. B., said: "Firebox and tubes are copper.' To say that that answer was only the expression of the defendant's opinion, would be, I think, to disregard the plain ordinary and obvious meaning of the words used by both 35 Id. 414.

33 H. & N. 417.

4

36 Id. 419, 420.

34

I

H. & C. 405 [1862].

37 36 L. T. N. S. 22 [1877].

parties on the occasion. When to a plain and direct question the answer given is equally plain and direct, and perfectly unqualified, as it was in the present instance, it is impossible, in my opinion, to treat such an answer as amounting to less than a warranty."

Huddleston, B., said:

" 38

"The real question here is whether or not there was (whether intended to be so or not by the vendor) a warranty by him, and whether it was received and acted on as such by the vendee. Now it is not necessary that the representation which is alleged to be a warranty should be simultaneous with the conclusion of the bargain; it is sufficient if it be made in the course of the negotiation, and enters into the bargain as finally made, and so that the bargain is made on the footing of it. Taking all these facts into consideration, I am of opinion that there was in this case a representation made by the defendant with regard to this engine, and the material of which the tubes were composed, that was intended by him to be, and which was, acted on by the plaintiff.” 39

The cases just cited and the extracts quoted are all, or substantially all, the authorities on the point; selected for whatever light they may throw upon the question, whether favorable or unfavorable to the writer's contention.

It is evident from an examination of these extracts that there has been considerable confusion in regard to the use of the words warranty and representation. Doubtless the confusion has been greatly aggravated by the manifold meanings attached to the word warranty.40 That a representation is the antithesis of warranty, as that word is used in the language of insurance and of charter-parties, is certain. It is natural that it should be hastily assumed that the same antithesis is used when warranty is spoken of in the law of sales; and this assumption is made in some of the extracts quoted, but generally it is made clear if a representation is spoken of as distinguished from a warranty, that what is meant by representation is an expression of opinion as distinguished from an assertion of fact. Only the expression of Crowder, J., in Hopkins v. Tanqueray " supports the idea that the seller must intend to contract that his representation is true in order to bind

38 36 L. T. N. S. 25 [1877].

41

39 Id. 26.

40 See Behn v. Burness, 3 B. & S. 751 [1863]. Anson on Contracts (12th ed.) 335n. 41 See supra, p. 7.

himself as a warrantor. The expressions of the judges in the later case of Cowdy v. Thomas 12 strongly support the opposite view.

42

Even before the decision of this case, Benjamin, in his treatise on the law of sale, had summed up as follows the English law in regard to the intent to warrant requisite to make out a warranty: "In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.'

44

"' 43

This statement, which appears in the first edition of Benjamin's work and in every subsequent edition, was adopted as an accurate statement of the law by the Court of Appeal in De Lassalle v. Guildford. Unfortunately, the reporter failed to indicate by quotation marks, or otherwise, that the statement was a quotation from Benjamin, and in Heilbut v. Buckleton, Lord Moulton, apparently ignorant where the expression he was criticizing originated, selects it for criticism as a "serious deviation from the correct principle." 45

The effect of a representation which induces a sale is shown not only by cases involving express representation, but by the whole law of implied warranty. It was not until after it became recognized that an express representation might be a warranty that the law of implied warranty was possible. The foundation for the law of implied warranty of title was laid when Lord Holt decided that a "bare affirmation" by one in possession that the goods sold are his own was sufficient to support on action.46 It was then easy for the law to take the further step (which was not taken, however, until the nineteenth century), that any sale of chattels by one in possession carried with it an implied warranty of title unless the circumstances were such as to make it clear that the seller merely purported to sell such interest as he had or could convey. The only basis for such a doctrine is that the seller necessarily represents by the mere proposal to sell that he has title.

47

42 See supra, pp. 8-9.

[1901] 2 K. B. 215, 221.

43 Benjamin, Sale, (1st ed.) 454.

45 Heilbut v. Buckleton, [1913] A. C. 30, 50.

46 Medina v. Stoughton, 1 Ld. Raym. 593, s. c.; 1 Salk. 210, 1795. 47 See Eichholz v. Bannister, 17 C. B. N. s. 708 [1864].

The law of implied warranty of quality has had a similar history. It had become established by the early part of the nineteenth century, as already shown, that a representation of quality by a seller to induce a sale amounted to a warranty. In 1842 the first case was decided which clearly held that on the sale of a specific chattel a warranty of quality might be implied without any express promise or representation by the seller.48 The case related to the sale of a specific barge which proved inadequate for the buyer's purpose of carrying cement. The court held that though there was no warranty that the barge was fit to carry cement, there was an implied warranty that the barge was reasonably fit for use as an ordinary barge. It is perfectly clear that the seller's contract was to sell the specific barge in regard to which the parties were negotiating. The only basis for imposing a liability as warrantor upon the seller is his implied representation that the specific thing which he seeks to sell is merchantable. It is impossible to analyze the situation so as to find a real promise of quality, either express or implied in fact. The obligation is one imposed by law, not by mutual assent, and the reason for imposing it is because the buyer is justified in believing that a manufacturer (or sometimes a dealer) by the very act of offering his goods for sale, asserts or represents that they are merchantable articles of their kind. The decision. just referred to has been regarded as unquestioned law ever since it was decided. The same point is involved in a decision of the Court of Appeal in 1910.49 In that case the plaintiffs had bought of the defendants "the 24/40 H. P. Fiat Omnibus . . . which we inspected." It was held that there was an implied obligation on the part of the seller that the omnibus should be of merchantable quality.50 It will be seen that the parties here were dealing with regard to a specific omnibus which had been inspected by the buyer.

The case is in no way different when the buyer orders goods of a certain description, and the seller, without having entered into any previous contract binding him to furnish goods of the description requested, offers specific goods to the buyer which the latter accepts. It may be thought that such a bargain contains the elements

48 Shepherd v. Pybus, 3 M. & G. 868 [1842].

49 Fiat Motors, Limited, v. Bristol Tramways, etc. Co., L. R. [1910] 2 K. B. 831. 50 See another case of implied warranty of specific goods in Irish v. Russell, L. R. Irish [1902] 2 K. B. 585.

of a contract by the seller that the goods shall fulfil the description, but on reflection it will be seen that this is not so. There is merely a representation implied in fact, though none the less real, that the goods produced and offered are of the kind requested. Whereupon, relying upon that representation, the buyer assents to become the owner of the specific goods produced.

A recent English case 51 of this sort affords an interesting comparison with the late decision of the House of Lords. In the earlier case the buyer of a rubber hot-water bottle, which broke when in use, sued the seller for breach of warranty and recovered. In that case the plaintiff asked for a rubber bottle. In Heilbut v. Buckleton the plaintiff asked for shares in a rubber company. In both cases, in response to a request for something which conformed to a given description, specific goods were produced and mutual assent to the sale of that specific thing followed. In neither case did the thing furnished justify the inferences naturally to be drawn from the description.

It should be observed that the sale of shares is not a sale of goods within the meaning of the English Sale of Goods Act, but there is no reason to suppose that express warranties of choses in action and of goods are to be differently defined. Certainly there is nothing in the language of the opinions in Heilbut v. Buckleton to suggest a difference. On the contrary, the reasoning and authorities cited in that case indicate that the court regarded the decision as involving the definition of express warranty in the sale of goods. An interesting case to compare with Heilbut v. Buckleton is Starkey v. Bank of England,52 decided by the House of Lords only ten years ago. In that case the defendant, a stockbroker, presented on behalf of a customer in good faith to the Bank of England a power of attorney, which purported to be signed by the owner of certain consols. On the faith of this power of attorney the bank transferred the consols to a third person. One of the signatures to the power of attorney was forged, and the bank, being liable to the original owner of the consols for making the transfer, sued the stockbroker. Recovery was allowed on the ground that since the bank acted "on the representation that the agent had the authority of the principal, that does import an obligation -the contract being

51 Preist v. Last [1903] 2 K. B. 148 C. A. See also Allan v. Lake, supra, p. 6. 52 [1903] App. Cas. 114.