construction, and is based on an endeavor by the court to give effect to the intention of the parties. If the seller of a horse which is obviously blind, and which both parties know to be blind, says he is sound, the meaning of sound as used in that connection must be sound except as to his eyes. The same rule is applicable to a defect which is not obvious, but of which the seller tells the buyer,1 or which the buyer knows.2 Doubtless the early authorities 3 go beyond this and justify the rule that even if the seller said "I warrant his eyes are all right," the buyer could not recover. It may be supposed in such a case either that the seller did actually observe the defect, or that he did not. In so far as the supposition is that the buyer actually observed the defect the question may seem academic, but it is not altogether so; for though the defect may be observed, the nature or extent, or consequences of it, may not be. There seems no reason if the seller contracts in regard to an obvious defect or if he makes representations upon which the buyer in fact relies, why the seller should escape liability. It can hardly lie in his mouth to say that though he was making false representations or promises to induce the buyer to make the bargain, and the buyer was thereby induced, he should not have been. Certainly there is a growing tendency in the law not to allow that sort of argument. A well-recognized limitation on any doctrine. freeing the seller from liability for statements or promises in regard to obvious defects is that if the seller successfully uses art to

Van Schoick v. Niagara Ins. Co., 68 N. Y. 434; Studer v. Bleistein, 115 N. Y. 316; Mulvany v. Rosenberger, 18 Pa. St. 203; Fisher v. Pollard, 2 Head (Tenn.) 314; Long v. Hicks, 2 Humph. (Tenn.) 305; Williams v. Ingram, 21 Tex. 300; McAfee v. Meadows, 32 Tex. Civ. App. 105; Hill v. North, 34 Vt. 604.

1 Knoepker v. Ahman, 72 S. W. 483 (Mo., Ct. App.).

2 Harwood v. Breese, 73 Neb. 521.

3 See supra, p. 557.

4 In Norris v. Parker, 15 Tex. Civ. App. 117, the court said: "There seems to be no good reason why a warranty may not cover obvious defects as well as others, if the vendor is willing to give it and the buyer is willing to buy defective property on the assurance of the warranty. If he relies on his own judgment alone, he does not rely on his warranty." “A special warranty on the sale of a horse may be made to cover blemishes or defects which are open and visible, if the intention to do so is clearly manifested," is the language of the Supreme Court of Minnesota in the case of Fitzgerald v. Evans, 49 Minn. 541. In Watson v. Roode, 30 Neb. 264, 271, it is said: "The seller may bind himself against patent defects, if the warranty is so worded." See also Henderson v. R. R. Co., 17 Tex. 560; Hobart v. Young, 63 Vt. 363; Powell v. Chittick, 56 N. W. 652 (Ia.); Williams v. Ingram, 21 Tex. 300.

See also Branson v. Turner, 77 Mo. 489, stated infra, p. 580. June v. Falkinburg, 89 Mo. App. 563.

conceal the defects, the seller is liable. That the buyer may be protected from the consequences of known defects by a warranty is well settled.2

Inspection may conceivably have a threefold importance in this connection. In the first place, if the defect was one which could be discovered by inspection, and the buyer did inspect the goods, it may be urged that the parties did not intend that the language used should cover this defect. This reasoning is analogous to that adopted in regard to obvious defects. An obvious defect, however, means a defect that is apparent upon casual inspection, and does not need careful or expert examination for its discovery. If the defect required examination of the latter sort, it is still more clear than in the cases of obvious defects that a seller who clearly promises or affirms that the goods are free from the defect which in fact vitiates them, will be liable. A second aspect in which inspection, or rather the right to inspect, may have a bearing on the seller's liability, arises where the buyer has full power and opportunity to inspect, and inspection if made would have disclosed the defective character of the goods, but the buyer fails to make the inspection. Whatever may be the law in regard to implied warranty, in the case of express warranty it is no defense that the buyer, had he inspected, might have found out the falsity of the seller's statements. The buyer is justified in taking the

1 Kenner v. Harding, 85 Ill. 264, 268; citing Chadsey v. Greene, 24 Conn. 562; Robertson v. Clarkson, 9 B. Mon. (Ky.) 506; Gant v. Shelton, 3 ibid. 420; Irving v. Thomas, 18 Me. 418. To the same effect are Armstrong v. Bufford, 51 Ala. 410; Roseman v. Canovan, 43 Cal. 110; Perdue v. Harwell, 80 Ga. 150; Brown v. Weldon, 99 Mo. 564; Biggs v. Perkins, 75 N. C. 397.

2 Thompson v. Harvey, 86 Ala. 519; Fitzgerald v. Evans, 49 Minn. 541; Branson v. Turner, 77 Mo. 489; Samuels v. Guin's Estate, 49 Mo. App. 8; Watson v. Roode, 30 Neb. 264, 43 Neb. 348; Pinney v. Andrus, 41 Vt. 631. In all these cases a defect in an animal which was the subject of the sale was observed by the buyer, and to induce the sale the seller warranted or represented the disease to be less serious than it in fact proved. The seller was therefore held liable. Cf. Ragsdale v. Shipp, 108 Ga. 817. There the buyer, examining an animal offered for sale and finding its throat swollen, asked the seller what was the matter with it? The seller replied that it had shipping cold and would be all right in a few days. There was nothing to show that the buyer did not have as full knowledge of the nature of the disorder as the seller. The statement was held to be merely an expression of opinion. The court does not decide, however, that if the other requisites of a warranty had existed, the fact that the defect was patent would have prevented the seller from being liable.

3 Courts sometimes fail to observe the distinction between express and implied warranty in this respect. See e. g., Egbert v. Hanford Produce Co., 92 N. Y. App. Div. 252.

seller at his word, and in relying upon the seller's statements rather than upon his own examination.1

A third possible importance of inspection by the buyer is as excluding reliance by the buyer on any statement of the seller in regard to the goods. It was held in a recent decision in New York that such was the effect of inspection.2 Such a decision, however, misinterprets the requirement of reliance. There is no reason in the nature of things why a buyer should not rely both on the seller's statements and on his own judgment. Observation shows that buyers constantly do this, and accordingly it is generally and rightly held that inspection by the buyer does not excuse the seller from liability for words which amount to an express warranty.3

If the seller's liability on a warranty is based on an agreement to contract, consideration is essential, and the requirement in an action on the case for deceit of reliance by the plaintiff on the defendant's statement also involves the idea of detriment suffered by the plaintiff's reliance upon the statement. If the statement

1 Thompson v. Bertrand, 23 Ark. 730. The seller of a slave gave a warranty of soundness. The buyer might have discovered the unsoundness of the slave's feet and knee by examination. The seller was held liable upon the warranty. Leitch v. GilletteHerzog Mfg. Co., 64 Minn. 434. The seller of 500 iron bedsteads said that if the parts of one of the beds went together properly, the parts of all would do so. The buyer having found that one could be put together properly, made no further inspection. It was held that the plaintiff was entitled to recover, though had he set up more of the bedsteads he would have discovered that the parts would not go together properly. See also Jones v. Just, L. R. 3 Q. B. 197, 204; First Bank v. Grindstaff, 45 Ind. 158; Meickley v. Parsons, 66 Ia. 63; Cook v. Gray, 2 Bush (Ky.) 121; Gould v. Stein, 149 Mass. 570, 577; Woods v. Thompson, 114 Mo. App. 38; Drew v. Edmunds, 60 Vt. 401 ; Barnum Wire Works v. Seley, 34 Tex. Civ. App. 47; Tacoma Coal Co. v. Bradley, 2 Wash. 600.

2 Crocker-Wheeler Electric Co. v. Johns-Pratt Co., 29 N. Y. App. Div. 300, aff'd 164 N. Y. 593. The seller of material called "vulcabeston" represented that it was made of the best para rubber and selected asbestos, and that it was practically a perfect insulating material. Specimens were furnished the buyer, who experimented with them. The court said, as to the seller's statements: "They were not relied upon by the plaintiff or its predecessor; for, before making any contract, the officers of the plaintiff or its predecessor satisfied themselves, by their own investigation or experiment, that the representations made respecting the material and its sufficiency for their purposes were true. It is elementary that, in order to entitle the plaintiff to maintain an action for breach of an express warranty, it must be established that the warranty was relied on. Such was not the case here."

3 Miller v. Moore, 83 Ga. 684; South Bend Co. v. Caldwell, 55 S. W. 208 (Ky.); Gould v. Stein, 149 Mass. 570; Smith v. Hale, 158 Mass. 178; Keely v. Turbeville, 11 Lea (Tenn.) 339; Woods v. Thompson, 114 Mo. App. 38.

4 See supra, p. 557.

was unknown to the buyer at the time the sale was completed, it is obvious that there can be neither consideration from the standpoint of the law of contracts nor detrimental reliance from the standpoint of the law of deceit.1

Still more clearly, if no warranty was made at the time of the sale, a subsequent agreement to warrant will be invalid unless new consideration is given for it.2 What constitutes new consideration depends on the general principle of the law of contracts. If the buyer was entitled to return the goods for any reason, or in good faith claimed such a right, a warranty given to induce him to forbear to exercise it and to keep the goods is supported by sufficient consideration.3 But if the buyer had no color of right to return the goods, a warranty made subsequently to the sale as an inducement to the buyer to keep the goods, is not binding. Where the title to property has passed but the price has not been fixed, a warranty made as part of the agreement fixing the price is binding.5

It has been held that a purchaser at an auction sale, who exacts a warranty after the goods have been knocked down to him but before he has paid for them may enforce the warranty. A similar

1 Landman v. Bloomer, 117 Ala. 312. It was held that where the only evidence of express warranty was a printed circular issued by the seller, a charge was properly given that if the evidence failed to show that the circular came to the buyer's knowledge there was no express warranty. Lindsey v. Lindsey, 34 Miss. 432.

2 Baldwin v. Daniel, 69 Ga. 782; Summers v. Vaughan, 35 Ind. 323; Farmers Ass'n v. Scott, 53 Kan. 534; White v. Oakes, 88 Me. 367; Cady v. Walker, 62 Mich. 157; Fletcher v. Nelson, 6 N. Dak. 94; Morehouse v. Comstock, 42 Wis. 626. It need hardly be said that if a warranty forms part of the terms of the sale, no separate consideration need be shown for the warranty. Standard Cable Co. v. Denver Electric Co, 76 Fed. 422 (C. C. A.), and cases in this article passim.

8 Blaess v. Nichols & Shepard Co., 115 Ia. 373. Similarly, where goods are not promptly delivered by the seller and the buyer has the right to refuse to accept them, a warranty given to induce the buyer to overlook a breach of agreement is binding. Ohio Thresher Co. v. Hensel, 9 Ind. App. 328; Congar v. Chamberlain, 14 Wis. 258. Or where a written warranty made at the time of the sale did not accurately express the intention of the parties, one executed subsequently to correct the mistake is effectual. Barton v. Chicago Covering Co., 113 Mo. App. 462.

4 White v. Oakes, 88 Me. 367; Fletcher v. Nelson, 6 N. Dak. 94.

5 Vincent v. Leland, 100 Mass. 432.

6 McGaughey v. Richardson, 148 Mass. 608. The court approved instructions laying down, in substance, "that if, before the money was paid and the horse was delivered, the question arose between the parties as to the form of the warranty to be given, and the parties agreed that these words of warranty should be written into the bill of sale as a part of the contract, and they were so written in, and the money was then paid and the horse delivered, the warranty would rest upon a good consideration, and would bind the defendant; but that if, after the horse had been delivered and the

decision has been made in regard to a sale not at auction. So it has been held that a warranty made at any time before a delivery of the property will be valid.2 These decisions cannot be accepted, however, without some qualification. Unless the buyer had some right or color of right for refusing to pay the price, a warranty given to induce him to do so would not be supported by sufficient consideration; for the payment of the price would be merely a performance by the buyer of what he was already under a legal obligation to do. Similarly, unless the buyer has a right, or color of right, to refuse proffered delivery of the goods, the acceptance of them will not be consideration sufficient to support a warranty.3

The parties may by agreement limit the effect of language which would otherwise be construed as an express warranty. The commonest illustration of this is where the seller makes statements in regard to the goods, but refuses to warrant the truth of the statements. Though the statements by themselves might be sufficient to constitute a warranty, the refusal not only indicates an unwillingness to contract for the truth of the statements, but also should put the buyer so on his guard that he would not be justified in buying in reliance upon them. The seller's refusal to warrant may, however, be so qualified as not to be inconsistent with justifiable reliance by the buyer. A refusal to warrant that a horse is sound, should not preclude the buyer from relying on a statement that the horse is five years old, or a statement that the horse is sound to the best of the seller's knowl

money paid, the warranty was inserted by the defendant in the bill of sale, and the defendant was not bound by the contract of sale to insert it, but he voluntarily chose to put it in, then the defendant was not bound by it."

1 Douglas v. Moses, 89 Ia. 40. Cf. Erwin v. Maxwell, 3 Murph. (N. C.) 241. 2 Webster v. Hodgkins, 25 N. H. 128.

8 These decisions go back to the case of Butterfeild v. Burroughs, 1 Salk. 211, where the plaintiff declared that the defendant “sold him a horse" and warranted it, "whereupon" the plaintiff paid his money. It was objected in arrest of judgment that as the warranty was set forth it might have been made at a time after the sale, but the court held otherwise, "for the payment was afterwards, and it was that completed the bargain, which was imperfect without it." This decision was made at a time, however, when title to property did not pass until the price was paid, unless credit was expressly given. Therefore, until the payment was made in Butterfeild v. Burroughs, the title had not passed and the language of the court indicates this was the ground of decision. At the present day the presumption is that title passes as soon as parties are agreed upon the terms of the bargain and the goods are in deliverable condition. Consequently the mere fact that the price was not paid would not now show a bargain to be incomplete.

↑ Fauntleroy v. Wilcox, 80 Ill. 477; Lynch v. Curfman, 65 Minn. 170; Smith v. Bank, Riley Eq. (S. C.) 113.