On page 44 the same judge said:

"But it would not be enough that Johnston should have offered to give a warranty as a term of the bargain to take these shares. The plaintiff should accept that offer and act upon it so as to make complete the collateral contract."

Lord Moulton said:

"Neither the plaintiff nor the defendants were asked any question or gave any evidence tending to shew the existence of any animus contrahendi other than as regards the main contracts. The whole case for the existence of a collateral contract therefore rests on the mere fact that the statement was made as to the character of the company, and if this is to be treated as evidence sufficient to establish the existence of a collateral contract of the kind alleged the same result must follow with regard to any other statement relating to the subject-matter of a contract made by a contracting party prior to its execution. This would negative entirely the firmly established rule that an innocent representation gives no right to damages. It would amount to saying that the making of any representation prior to a contract relating to its subjectmatter is sufficient to establish the existence of a collateral contract that the statement is true and therefore to give a right to damages if such should not be the case.' 11 6

7

The only authorities on which the Lords rely to support their conclusion are the well-known case of Chandelor v. Lopus and the dictum of Buller in Pasley v. Freeman, that "it was rightly held by Holt, J., cited in the subsequent cases, and has been adopted ever since, that an affirmation at the time of a sale is a warranty, provided that it appears on evidence to have been so intended." In fact Lord Holt said nothing about intent in any of the reports of the cases cited by Buller, and Buller was too far removed in time from Holt to permit the supposition that he had any other knowledge of what Holt said than what the reports might give to him and equally give to us. The dictum of Buller, however, forms the basis of a positive assertion by Lord Moulton that Lord Holt regarded intent to warrant a material element. By this the court understands intent to contract, though if Lord Holt did make any such statement as that imputed to him he can hardly have meant intent to contract, since no action of assumpsit was ever brought

6 [1913] App. Cas. 30, 48. 7 Cro. Jac. 4 [1603]. 83 T. R. 51, 57 [1789].

on a warranty until long after Lord Holt's time. Clearly anyone using the language in question in 1700 must have used it as meaning intent to affirm a fact as the basis of or inducement to a sale.

Moreover, if Holt did say what Buller imputed to him, and if Chandelor v. Lopus affords support to the decision of Heilbut v. Buckleton, it is a novel application of the doctrine of stare decisis to disregard the numerous decisions on the law of warranty during the past century, and hark back to a decision nearly three hundred years old and to a dictum pronounced over a century ago, before the law on the subject had been developed.10 The writer has elsewhere endeavored to show that warranty by representation is not to be confined within the limits of the law of contracts, and that in so far as the seller's intent (of course meaning his apparent, not his actual intent) is an essential element of a warranty, it is only his intent to assert a fact in order to induce a sale, not his intent to enter into a contract. It is not necessary to repeat the argument, but it is worth while perhaps to show the inconsistency of the recent decision with what has heretofore passed as the law of England.

11

Lord Moulton is careful to point out in his opinion that he has "been dealing only with warranty or representation relating to a specific thing. This is wholly distinct from the question which arises when goods are sold by description and their answering to that description becomes a condition of the contract." " It is, of course, true that there is a marked distinction in the seller's obligations where he has contracted to sell by description, and where he sells specific goods. In the former case the seller's obligation by the very terms of his contract require him to fulfil the description as its meaning would be understood by a reasonable

man.

Though the original basis of warranty was deceit and not contract, and though much confusion would be avoided if it were borne in mind that not only historically but analytically the scope of warranty in sales goes beyond the bounds of contract, it must be conceded that, at least on the English authorities, warranty is to be regarded as a contractual liability. But it cannot be admitted that prior to the recent decision of the House of Lords it was See 24 HARV. L. REV. 419-421.

10

24 HARV. L. REV. 419; Williston, Sales, § 201.

11 [1913] App. Cas. 30, 51.

supposed that this contractual liability could only arise where an offer and acceptance of a promise could be found. A representation which induced a sale if it was not itself a warranty at least was evidence justifying the inference of a warranty. This can best be shown by an examination of the English decisions.

There is rather a surprising dearth of cases in the eighteenth century subsequent to the decisions at the beginning of that century by Lord Holt. In 1797, however, it was held in Jendwine v. Slade 12 that a description of two pictures in a catalogue as painted by certain artists did not afford evidence of a warranty. Forty years later in a case very similar in its facts in Power v. Barham,13 the court held the case properly left to the jury under the instruction that if "the defendant had made a representation as part of his contract that the pictures were genuine, not using the name of Canaletti as matter of description merely, or as an expression of opinion upon something as to which both parties would exercise a judgment, but taking upon himself to represent that the pictures were Canaletti's, the defendant was liable on a warranty." And Lord Denman said in his opinion in the court in banc: "It was therefore for the jury to say, under all the circumstances, what was the effect of the words and whether they implied a warranty of genuineness, or conveyed only a description, or an expression of opinion."

Williams, J., also said: "The words in question might be a mere expression of opinion, or might amount to a warranty: It was for the jury to say which they imported."

Between these two decisions there had been several others bearing upon the question. In Shepherd v. Kain,1 in 1821, it appeared that an advertisement for the sale of a vessel described her as "copper fastened." The ship was only partially copper fastened, and Best, J., directed a verdict for the plaintiff, which was sustained by the upper court, though it was part of the contract that the ship should be taken "with all faults." The court construed these words to mean "all faults consistent with the advertisement." In Kain v. Old,15 decided in 1824, a vessel was described as "copper bolted" in an instrument executed prior to the bill of sale of the vessel. It was held that the prior paper could not be regarded as 13 Ad. & El. 473 [1836].

12 2 Esp. 572.

part of the contract; and if so intended would have been invalid because it did not recite the certificate of registry. Best, J., however, said, in regard to the statement, “If it be a mere representation, where is there a warranty to bind the vendor's executors?" 16 and Abbott, C. J.: "The description of copper bolted in the paper can therefore be considered as a representation only, and not as any part of the contract." 17

In Salmon v. Ward,18 a letter of the plaintiff stating "You will remember that you represented the horse to me as a five year old," and a reply from the defendant, "The horse is as I represented it, was held sufficient evidence to sustain a verdict for the plaintiff, Best, C. J., saying: "I quite agree that there is a difference between a warranty and a representation; because, a representation must be known to be wrong. If a man says, this horse is sound, that is a warranty."

In Cave v. Coleman,19 in 1828, a representation by a defendant that the plaintiff might "depend upon it that the horse is perfectly quiet, and free from vice," amounted to a warranty, Bayley, J., saying: "But that representation was that the horse was quiet, and free from vice, and being made in the course of dealing, and before the bargain was complete, it amounted to a warranty." 20

In Wood v. Smith,21 in 1829, a statement in regard to a horse by the seller, "I never warrant, but he is sound as far as I know, was held sufficient evidence to justify the jury's verdict for the plaintiff, Bayley, J., saying in banc: "The general rule is, that whatever a person represents at the time of a sale is a warranty.'

" 22

In Allan v. Lake,23 in 1852, a specific lot of turnip seed was sold to the plaintiff under the description in a sold note, "Skirving's Swedes," and later another lot with the oral statement that it was "of the same stock" as the first. It was held that the description in the sold note amounted to a warranty that the seed was Skirving's Swedes, and that the statement at the subsequent sale was evidence of a similar warranty as to that lot. Coleridge, J., said: "If it had been limited to an assertion that the seed was turnip seed, that would without doubt be a warranty of the seed being turnip seed.

And, in like manner, when the defendant described the seed as Skirving's, he undertook that it should answer that description." 24

Erle, J., said:

"When a vendor gives a description of the properties of an article, it is a question for the jury whether such description is a mere commendation of the article, or a direct representation that he sells it as being the particular article described." 25

In Hopkins v. Tanqueray,26 in 1854, an assurance that a horse was "perfectly sound" made on the day prior to the sale of the horse at auction, was held not to amount to a warranty; and a rule absolute was entered to set aside a verdict for the plaintiff. Jervis, C. J., said:

"I think it is quite clear that what passed amounted to a representation only, and not to a warranty." 27

Maule, J., said:

"There appears to have been no more than an honest representation that the horse in the defendant's opinion, and so far as his knowledge went, was a perfectly sound horse." 28

Cresswell, J., said:

"If the representation made at the stable on the Sunday had been made at the time of the sale, so as to form part of the contract, it might have amounted to a warranty." " 29

and Crowder, J.,

"A representation, to constitute a warranty, must be shewn to have been intended to form part of the contract." 30

In Carter v. Crick,31 in 1859, a statement that a sample of barley was "seed barley" to which the buyer on examination agreed was held not to amount to a warranty. Channell, B., said:

"I do not mean to suggest, that where there is a representation of a distinct article by the seller, that might not amount to a warranty although the word 'warrant' was not used. . . . Each arrived at the conclusion, as a matter of opinion, and as a matter of opinion only, that the barley was seed barley." 32