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RETENTION OF POSSESSION BY VENDOR OF PERSONAL PROPERTY AFTER SALE is prima facie evidence of fraud: See Bullitt v. Taylor, 69 Am. Dec. 412, note 419, where other cases are collected.

WIDOW, WHEN COMPETENT WITNESS AS TO TRANSACTIONS AFFECTING HUSBAND'S INTERESTS: See Smith v. Potter, 65 Am. Dec. 198, note 200, where other cases are collected.

CONVEYANCES FRAUDULENT AS TO CREDITORS, AND THEIR RIGHT TO IMPEACH THEM: See Clark v. Depew, 64 Am. Dec. 717, note 720, where other cases are collected.

DECLARATIONS OF GRANTOR CONCERNING FRAUDULENT CONVEYANCES, WHEN ADMISSIBLE: See McDowell v. Goldsmith, 61 Am. Dec. 305, note 317 where other cases are collected.

LAMME v. GREGG.

[1 METCALEE, 444.]

REPRESENTATION MADE BY VENDOR AT TIME OF SALE RESPECTING KIND, QUALITY, OR CONDITION of the thing sold, upon which he intends that the vendee shall rely, and upon which he does rely in making the purchase, amounts to a warranty. But if the vendor merely intends to express an opinion or belief upon the matter, and not to make an affirmation of a fact, the statement will not amount to a warranty. And when a doubt exists upon the evidence, whether the vendor intended to assert a fact, or merely to express an opinion, or belief, the decision of the question must be left to the jury.

AFFIRMATION THAT JACK IS GOOD AND SURE FOAL-GETTER, made at the time of the sale, is such a representation of fact as amounts to a warranty.

PETITION. The opinion states the case.

Burdett and Hatch, and A. A. Burton, for the appellant.

Boyle, Anderson, and Bell, for the appellee.

By Court, SIMPSON, C. J. The plaintiff alleged in his petition that the defendant sold him a jackass at the price of four hundred dollars, and at the time of the sale warranted said jackass to be a good and sure foal-getter, and a superior breeding jack. He averred that he was not a sure foal-getter at the time of the Bale, nor since that time, and that he was of no value whatever for breeding.

The defendant admitted the sale, denied the alleged warranty, but stated that he represented the jack to be a good and sure foal-getter at the time of the sale.

It was proved on the trial in the circuit court that the defendant stated, at the time he sold the jack to the plaintiff, that he was a sure foal-getter, and that he had before, and got sixty or sixty-five colts.

made a season the year The plaintiff also intro

duced evidence conducing to prove that the jack was not a sure foal-getter, but, on the contrary, was entirely impotent and deficient as a breeder.

On this evidence the court instructed the jury to find a verdict for the defendant; and a judgment having been rendered against the plaintiff, he prosecutes this appeal for its reversal.

The question presented in this case is, whether the representation made by the vendor at the time of the sale, that the jack was a sure foal-getter, amounted to a warranty. As the action was brought for a breach of warranty only, the plaintiff could not recover, unless he proved the warranty relied on.

In some of the early cases in this court it was decided that a mere affirmation or representation of the soundness of the thing sold did not constitute a warranty; that although no particular form of words was necessary to create a warranty, yet that words must be used which imported an agreement, and that a mere affirmation of soundness did not amount to an undertaking that the thing sold was sound: Smith v. Miller, 2 Bibb, 617; Bacon v. Brown, 3 Id. 35.

But in the case of Dickens v. Williams, 2 B. Mon. 374, it was held that an affirmation in a bill of sale that the jack sold was “ 8 good and sure foal-getter" imports a covenant of warranty that it was so. And it was said by the court that "such expressions in a written contract, when unqualified, as in that case, by anything else therein, should be deemed a part of the contract, and therefore stipulatory; thereby the vendor, of course, agreed that the jack was as described, and consequently that agreement was a covenant to that effect."

Several other cases, the opinions in which were not published, have since been decided by this court, in which it was held, on the authority of that case, that an affirmation of soundness in a written contract of sale amounted to a warranty. It may therefore be now be considered as the settled doctrine of this court that an affirmation of the soundness or quality of the thing sold, if contained in a bill of sale, constitutes a warranty.

We cannot perceive any substantial reason for a distinction between a written and a verbal contract, where, as in this case, the sale is as effectual when made by a verbal as by a written contract. The language means the same thing, whether it be written or verbal; and uniformity of decision, as well as the rights of the parties, requires that the same construction and effect should be given to

both kinds of contracts.

The tendency of the modern adjudications upon this question

is to regard an assertion of a fact relating to the kind, quality, or condition of the article sold, made by the vendor at the time of sale, as being part of the contract and amounting to a warranty: Duffee v. Mason, 8 Cow. 25; Vernon v. Keys, 12 East 637; Morrill v. Wallace, 9 N. H. 111.

Some of the cases seem to make the question of warranty depend upon the intention of the vendor; Chapman v. Murch, 19 Johns. 290 [10 Am. Dec. 277]; Cook v. Moseley, 13 Wend. 278. We think whenever the vendor, at the time of the sale, makes an assertion or representation respecting the kind, quality, or condition of the thing sold, upon which he intends that the vendee shall rely, and upon which he does rely in making the purchase, that it amounts to a warranty. If, however, the vendor, by what he says, merely intends to express an opinion or belief about the matter, and not to make an affirmation of a fact, then the statement will not amount to a warranty.

Where doubt exists upon the evidence whether the vendor intended to assert a fact or merely express an opinion or belief, that question must be left to the jury to decide.

Here the vendor admits in his answer that he represented the jack to be a good and sure foal-getter. This was such a repre sentation of a fact as constituted it a part of the contract of sale, and makes it amount to a warranty.

Wherefore the judgment is reversed, and cause remanded for a new trial, and further proceedings consistent with this opinion.

WARRANTY, WHAT REPRESENTATIONS AMOUNT TO, ON SALE OF CHATTELS: See Randall v. Thornton, 69 Am. Dec. 56, note 59; Tuttle v. Brown, 64 Id. 80, note 83, where other cases are collected. Where a party is induced by representations of another to rely upon them, and they turn out to be false, the party defrauded has a remedy against the party who made the representations. And it is a question for the jury whether he did so rely or not: Matlock v. Todd, 19 Ind. 135, citing the principal case.

MOUNT STERLING AND JEFFERSONVILLE TURNPIKE ROAD COMPANY v. LOONEY.

[1 METCALFE, 550.]

CORPORATION CANNOT BE BOUND BY CONTRACT MADE BY ITS PRESIDENT, unless power to bind it is given to him by the act of incorporation, or he is authorized by the corporation to make the contract.

TO BIND CORPORATION BY IMPLIED PROMISE, EVIDENCE MUST SHow acta of the corporation, or of an agent thereof authorized to make the promise, from which such promise may be implied.

PETITION. The plaintiff below sued the appellant and recovered a judgment against the company for work and labor performed by him for it. On the trial, the plaintiff undertook to show that the work was done under the employment of the president of the company, and that he promised to pay for it. The other facts appear in the opinion.

B. J. Peters and R. Apperson, jun., for the appellant.

Walter Chiles, for the appellee.

By Court, WOOD, J. A corporation cannot be bound by a contract made by its president, or any individual member of the corporation, unless the power so to bind the company is given to the president or individual members by the act of incorporation, or by some act of the corporation.

"It necessarily results from the incorporation of a number of individuals into one body, making what may be styled an immaterial person, that the united will of the whole, or at least a majority of its members or representatives, should be the will of that immaterial existence which is acknowledged by the law:" Macbean v. Irvine's Ex'r, 4 Bibb, 17; Frankfort Bank v. Anderson, 3 A. K. Marsh. 1.

By the charter of the corporation, now the appellant, no such power to bind the corporation by contract is conferred upon the president, or any member or number of individual members acting separately. To bind the corporation, the expression of

its will must be had in some form.

According to the old rule, the will of a corporation could be evidenced in no other mode than by the seal of the corporation: Frankfort Bank v. Anderson, supra.

According to the opinion of this court in the case of Frankfort Bridge Co. v. City of Frankfort, 18 B. Mon. 41, this rule, however, did not apply to acts and votes passed by such corporations at their corporate meetings.

It is held further, in that case, that "the modern doctrine is that corporations may be bound by express promises made by their authorized agents, or that promises may be implied from their acts, or the acts of their agents."

Nevertheless, to bind the corporation by such promises made by agents, it must be shown that the agent possessed authority from the corporation to make the promises. And if the effort is to bind the corporation by an implied promise, the evidence must show acts of the corporation, or acts of an agent authorized to make the promise, from which the promise may be implied.

The assent of the corporation must in some form be proved: Angell & Ames on Corp., c. 8, p. 229, and numerous authorities cited in the chapter. See also chapter 9, same work, title Agents. If the acts of an agent are relied on, they must be within the scope of his authority, and the authority must be shown: Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 305.

In the first instruction given by the court to the jury this principle was disregarded altogether. It tells the jury that the promise of the president is sufficient to bind the company, without any reference to the authority which he may have for that purpose, or a subsequent ratification of such promise by the company.

The simple act of the president, whether authorized by an antecedent act of the corporation, or ratified by a subsequent act or acts, or not, is held by the circuit court to be enough to bind the corporation.

In the instruction asked by the defendant (now appellant), this point was made distinctly and separately to the court. The court was asked in substance, to instruct the jury that a promise by the president did not bind the corporation, unless it was proved that he was authorized by the corporation to make the promise. This instruction was refused. Such an instruction as this the defendant was entitled to, and should have been given.

The court therefore erred in giving the instruction asked for by the plaintiff, and in refusing the one asked for by the de fendant.

The case of Frankfort Bridge Co. v. Frankfort, 18 B. Mon. 41, does not sustain the rulings of the circuit court, as is contended in argument by the counsel for the appellee.

We do not perceive any other substantial error in the record.

But for the errors aforesaid, the judgment of the circuit court is reversed, and the cause remanded, with directions to set aside the verdict and award a new trial, and for further proceedings not inconsistent with this opinion.

ADMISSIONS OF PRESIDENT OF CORPORATION ARE EVIDENCE AGAINST It, if made by him in the execution of his duties, about the business of the company, and within the scope of the authority usually exercised by him: Chicago etc. R. R. Co. v. Coleman, 68 Am. Dec. 544, and note 546, where other cases are collected.

CORPORATIONS, WHEN BOUND BY ACTS OF AGENTS UNDER IMPLIED ADTHORITY: See Ryan v. Dunlap, 63 Am. Dec. 334, note 339, where other cases are collected.

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