edge.1 There are indeed some cases where an express written warranty was made as to one fact and the court refused to construe assertions as to other facts as a warranty. It is probable that the ground of these decisions is that the seller's descriptive statements would not constitute a warranty even had there been no other warranty contained in the writings. On whatever ground they are rested, the decisions, which are most of them old ones, seem open to criticism, as are many of the older cases on warranty. That descriptive statements may constitute a warranty has already been seen. If this is granted, the express contract of warranty which the parties enter into does not seem to preclude a reasonable man from relying upon assertions as to other matters than those covered by the express contract. If then the buyer in fact relies upon such statements, an obligation should be imposed by law upon the seller as in other cases where he makes positive statements of fact upon which the buyer is justified in relying, although the words do not indicate an agreement to contract.

Samuel Williston.

1 Wood v. Smith, 5 M. & R. 124.

2 In Richardson v. Brown, I Bing. 344, a memorandum of the sale of a horse stated the subject of the sale as "a horse 5 years old, has been constantly driven in the plough, warranted." It was held that this was a warranty of soundness and did not cover the assertion in regard to the horse's age.

So in Budd v. Fairmaner, 8 Bing. 48, the following memorandum, "received ten pounds for a gray four year old colt, warranted sound in every respect," was held to give no warranty as to the age of the animal.

So in Anthony v. Halstead, 37 L. T. (N. s) 433, this receipt, "received sixty pounds for a black horse, rising five years, quiet to ride and drive, and warranted sound up to this date, or subject to the examination of a veterinary surgeon," was held to give no warranty that the horse was quiet to ride or drive. See also to the same effect Dickenson v. Gapp, cited in 8 Bing. 50, and Willard v. Stevens, 24 N. H. 271. 3 Supra, p. 563.

NOTE A.

In Berman v. Woods, 38 Ark. 351, an order was given for a printing press based on representations in the seller's letters and catalogue of the size and capacity of the press. The press was sent, but the buyer claimed it was not in accordance with the statements. The court held that as the press did not correspond in one material respect, the size of the form which it would print, with the representations made in correspondence, rescission for breach of warranty might have been made if the buyer had acted promptly. As to the representations, the nature of which is not stated, in regard to the merits of the press made by the sellers in their circular, the court held that they did not amount to warranties; saying: "They are the usual artifices of enterprise and competition," and quoted 1 Parsons, Contracts, 588, to the effect that a purchaser cannot rely upon all statements and assertions made by the maker in circulars concerning the article as a warranty that it will do what is stated."

An intention to warrant is also said to be necessary in Hartin Commission Co. v. Pelt, 88 S. W. 929 (Ark.).

In Barnett v. Stanton, 2 Ala. 181, the seller of clothing represented it to be "fresh, well-made, and suitable for the market." The court held that there was no warranty; saying, "No matter how positive the representation of the seller may be, it will be regarded as an expression of his belief, or opinion, unless it was intended and received as a stipulation that the property was of the quality represented."

In McCaa v. Elam Drug Co., 114 Ala. 74, 86, the court said, however: "Every vendor, whether he be a dealer or not, is responsible for his representations or affirmations as to quality, which are more than expressions of opinion and which are relied upon, and upon which the party purchasing has the right to rely," and also: "The purchaser may have had no opportunity to examine the article, or, if subject to examination and in fact examined, he may not possess the requisite information to enable him to determine. In such a case, if the vendor affirms or represents the quality of the goods, as a fact, he is bound by such representation or affirmation."

It will be seen that in these statements nothing is said about the seller's intention. In Polhemus v. Heiman, 45 Cal. 573, 578, the court defined a warranty as follows: Any affirmation made at the time of sale as to the quality or condition of the thing sold will be treated as a warranty if it was so intended." In McLennan v. Ohmen, 75 Cal. 558, the court laid down the same rule, adding: "Whether it was so intended and the purchaser acted upon it are questions of fact for the jury."

In Illinois several early cases laid stress upon the intention of the seller. In Ender v. Scott, 11 Ill. 35, an instruction to the jury that "if the defendant represented in positive terms to the plaintiff before the exchange that the mare was sound, such positive assertion will amount to a warranty," was held to be erroneous because it was said that the plaintiff might not have intended the assertion as a proposition to warrant. Intention was also laid stress upon in Adams v. Johnson, 15 Ill. 345. In Hanson v. Busse, 45 Ill. 496, the court, though giving a definition of warranty which included the requirements of intention, held that in case of a sale by sample a representation that the bulk was as good as the sample, necessarily amounted to a warranty.

In Reed v. Hastings, 61 Ill. 266, 268, the court effectually limited its earlier decisions by holding that "the intention with which the representation is made is to be determined by the character of the representation made, and the object to be effected by it." The court further said, broadly: "When the representation is positive and relates to a matter of fact, it constitutes a warranty. . . It surely cannot be the law that a vendor of a chattel is permitted to make any false statements of fact in relation to the article which he may choose to indulge in, thereby inducing the purchase, and not being accountable to the purchaser." The same test was applied in Kenner v. Harding, 85 Ill. 264, and in Roberts v. Applegate, 153 Ill. 210, 216.

In Phillips v. Vermillion, 91 Ill. App. 133, however, the court without citing any cases held that the question of intention was vital.

In Indiana the court lays stress on intent.

In House v. Fort, 4 Blackf. (Ind.) 293, the court held that a statement that a horse was sound, made to induce the sale, was not, per se, a warranty. "It is of itself only a representation. To give it the effect of a warranty there must be evidence to show that the parties intended it to have that effect."

So in Jones v. Quick, 28 Ind. 125, it was held that the words must have been "intended and understood" as a warranty. In Smith v. Borden, 160 Ind. 223, 228, the court does not put the matter so strongly: "Any positive representation, assertion, or affirmation, made by the seller during the pendency of the negotiations for the sale, not the mere expression of an opinion or belief, which fairly expresses the intention of the seller to warrant the article or property sold to be what it is

represented, will constitute an express warranty." See also Bowman v. Clemmer, 50 Ind. 10.

In Ransberger v. Ing, 55 Mo. App. 621, the court held that a mere assertion of the quality or condition of a chattel at the time of a sale is not, as matter of law, a warranty, but it is merely evidence thereof as it may tend to show the intention of the parties, which is a question for the jury.

court held that a statement made by a

In Kircher v. Conrad, 9 Mont. 191, the seller that certain wheat was "spring wheat was not a warranty. The court relied on Shisler v. Baxter, 109 Pa. St. 443, and Lord v. Grow, 39 Pa. St. 88, which do indeed support the decision of the Montana court, but, as has been seen, the law of Pennsylvania is peculiar.

name.

Seixas v. Woods, 2 Caines (N. Y.) 48. In this case the seller advertised certain wood he had for sale as "brazilletto," and showed to the plaintiff an invoice of the wood received from the person who had sold it to him, describing the wood by that name. He also made out a bill of parcels to the plaintiffs for the wood under that In fact, the wood was peachum, but the defendant did not know it. This was held no warranty because it did not appear by the evidence that the seller so intended. Again, in Swett v. Colgate, 20 Johns. (N. Y) 196, the court held a description of certain goods by the seller as "barilla" did not amount to a warranty that they were such. The law of New York, however, is no longer indicated by these cases.

In Hawkins v. Pemberton, 51 N. Y. 198, Earl, J., says: “It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a warranty. If the contract be in writing and it contains a clear warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares: and so, if it be by parol, and the representation as to the character or quality of the article sold be positive, not mere matter of opinion or judgment, and the vendee under. stands it as a warranty, and he relies upon it, and is induced by it, the vendor is bound by the warranty, no matter whether he intended it to be a warranty or not. He is responsible for the language he uses, and cannot escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee."

In North Carolina early decisions laid stress on intent, and apparently by intent, meant an intent to contract. Erwin v. Maxwell, 3 Murph. (N. C.) 241; Foggart v. Blackweller, 4 Ired. (N. C.) 238. In McKinnon v. McIntosh, 98 N. C. 89, 92, however, the court says: "That for misrepresentation the vendor is liable as on a warranty 'if such representation was intended not as a mere expression of an opinion but the posi tive assertion of a fact upon which the purchaser acts,' and this is a question for the jury."

In Vermont the rule as to intention has been strictly applied until recently. In Enger v. Dawley, 62 Vt. 164, an instruction was requested that if a catalogue was used by the parties and referred to by them in completing the sale, and the defendant relied on statements therein and believed them to be true, they were, in legal effect, warranties. The court held the instruction correctly refused, saying: "To constitute a representation a warranty, it must have been so intended and understood by the parties, both vendor and vendee. Beeman v. Buck, 3 Vt. 53; Foster v. Caldwell's Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Houghton v. Carpenter, 40 Vt. 588; Pennock v. Stygles, 54 Vt. 226; or, intended by the parties as a part of the contract. Richardson v. Grandy, 49 Vt. 22; or, have formed the basis of the contract; Beals v. Olmstead, 24 Vt. 114; Drew v. Edmunds, 60 Vt. 401." In Hobart v. Young, 63 Vt. 363, 369, however, the court modified its previous position, saying: Any affirmation as to the kind or quality of the thing sold, not uttered as matter of commendation, opinion, nor belief, made by the seller pending the treaty of sale, for the purpose of

66

assuring the purchaser of the truth of the affirmation and of inducing him to make the purchase, if so received and relied upon by the purchaser, is deemed to be an express warranty. And in case of oral contracts, it is the province of the jury to decide, in view of all the circumstances attending the transaction, whether such a warranty exists or not."

In Mason v. Chappel, 15 Grat. (Va.) 572, 583, the court said: "No affirmation, however strong, will constitute a warranty unless it was so intended. If it is intended as a warranty, the vendor is liable, if it turns out to be false, however honest he may have been in making it; but if it is intended as an expression of opinion merely, or as simple praise or commendation of the article, he is not liable, unless it can be shown that he knew at the time that it was untrue." In later Virginia cases, however, less stress is laid upon intent. In Herron v. Dibrell, 87 Va. 289, the court held that statements made in regard to tobacco that it was "sound" and "redried" and in "good keeping order," amounted to a warranty. The court quoted with approval: "The general rule is that whatever a person represents at the time of the sale is a warranty." See also Milburn Wagon Co. v. Nisewarner, 90 Va. 714.

In Giffert v. West, 33 Wis. 617, the court held: "that an affirmation made by the vendor at the time of the sale amounts to an express warranty, if it appears on the facts stated or proven to have been so intended and received." In Hoffman v. Dixon, 105 Wis. 315, however, the court held: "An affirmation of the fact as to the kind or quality of an article offered for sale, of which the vendee is ignorant but on which he relies in purchasing such article, is as much a binding contract of warranty as a formal agreement using the plainest and most equivocal language on the subject. . . The better class of cases holds that a positive affirmation of a material fact as a fact, intended to be relied upon as such and which is so relied upon, constitutes in law a warranty, whether the vendor mentally intended to warrant or not. The latter is the doctrine of this court, as indicated by numerous cases where it has been applied." To similar effect is J. H. Clark Co. v. Rice, 127 Wis. 451. See also Bagley v. Cleveland Rolling Mill Co., 21 Fed. 159; Unland v. Garton, 48 Neb. 202; Cole v. Carter, 22 Tex. Civ. App. 457.

NOTE B.

In the following cases relief was allowed: Sauerman v. Simmons, 74 Ark. 563, an action of rescission for breach of warranty. Held a question for the jury whether representations as to a pump "that it would lift 35 feet on a straight lift" amounted to a warranty. Mason v. Thornton, 74 Ark. 46, an agreement that the price of the goods sold should be determined by the cost marks upon them was held to involve a statement by the seller that the marks purporting to indicate the cost did so in fact, and that tort for deceit would lie if the seller knew the marks to be inaccurate.

Burge v. Stroberg, 42 Ga. 88, a statement that a horse was 14 years old, held a warranty.

In Trench v. Hardin County Canning Co., 67 Ill. App. 269, the seller wrote: "understand we quote you only on cases that are well made, tested, and in every way satisfactory for your work." This was held to create a warranty that cars bought thereafter were first class in every particular.

Forcheimer v. Stewart, 65 Ia. 593, a description of hams as canvased hams was held a statement of fact.

"choice sugar-cured

Latham v. Shipley, 86 Ia. 543, statements were made in a catalogue in regard to a machine that it was in "first class order," and in letters that "it will certainly do your work," the buyer had not seen the machine and relied on the seller's statements Held, the seller was liable in damages for breach of warranty.

Stevens v. Bradley, 89 Ia. 174, the owner of hogs at an auction sale announced that

they were as "thrifty a lot as he had ever owned, and that he had been in the hog business a good many years." Held a warranty of soundness.

Harrigan v. Advance Thresher Co., 26 Ky. L. Rep. 317, statements in regard to a second-hand engine that it was "all right, in good condition," and "could do the work of any good twelve horse power engine" if untrue, justified recoupment in an action for the price.

McClintock v. Emick, 87 Ky. 160, a statement pending a bargain that mules were "ail right" amounts to a warranty of soundness.

Bryant v. Crosby, 40 Me. 9, the statement that "sheep are young and healthy" is a statement of fact.

Morse v. Moore, 83 Me. 473, "good clear merchantable ice not less than twelve inches in thickness." These words were part of the seller's promise in a written contract and were held to amount to a warranty.

J. I. Case Co v. McKinnon, 82 Minn. 75, an assurance that an engine had “ample power to run a separator was held to render the seller liable as a warrantor.

"

Branson v. Turner, 77 Mo. 489. The seller wrote the buyer that he had a fine steer for sale, that the steer had a sore under his neck, "but that don't hurt him, it is most well." The buyer replied, "if your cattle are as good as represented you can deliver them." The steer was thereupon sent with others. It was held this amounted to a warranty.

Burr v. Redhead, 52 Neb. 617, statements that bicycles were to be of "good materials" and of the "highest possible grade were held statements of fact.

"

Lederer v. Yule, 67 N. J. Eq. 65, a representation that a patented burglar alarm could be made as good as a sample for a specified price, was held ground for rescission for fraud. This necessarily involved a decision that the representation was as to matter of fact rather than opinion.

Phillips v. Crosby, 70 N. J. L. 785, representations by the seller of oil stock as to the lands owned by the company, the number of oil wells upon the lands and their productiveness. It was held that they should be submitted to the jury to find whether there was a warranty.

Money v. Fisher, 92 Hun (N. Y.) 347, on purchase of a bull the buyer asked if he was “fat and all right” and said he would purchase on that condition. The seller answered "yes." This was held a warranty.

Titus v. Poole, 145 N. Y. 414, on selling bank stock the seller stated that the bank was organized under the laws of Pennsylvania, that the stock was worth one hundred cents on the dollar, that it was good high dividend paying stock. It was held the seller was liable for these statements as upon a warranty that the stock was worth par and that the bank was organized as represented.

May v. Loomis, 140 N. C. 350, statements fraudulently made by the sellers of timber that they had had it carefully estimated and that the estimate showed a specified quantity, are statements of fact, and entitle the buyer to a counter-claim when sued for the price.

Reese v. Bates, 94 Va. 321, a statement that guano was as good as any in the market" is a statement of fact.

Northwestern Lumber Co. v. Callendar, 36 Wash. 492, representations by the seller of machinery to make boxes, as to the worth of the machinery and the boxes made by it, were held warranties justifying a finding for the buyer in an action for the balance of the price.

Winkler v. Patten, 57 Wis. 405, statements that goods were "good bagging and gunnies" and were "far superior to any Chicago and Milwaukee packings" and were "worth 21⁄2 cts. per pound" amounted to a warranty justifying the buyer in counterclaiming in an action for the price.

Milwaukee Machine Co. v. Hamacek, 115 Wis. 422, the seller's statement that an