Point Involved: Whether a description of an article by the seller amounts to an affirmation of fact constituting a warranty. Whether the statement that a horse is sound is a statement of fact or of opinion.

"An important question is, whether the words 'sound and kind,' contained in the bill of sale, constitute an express warranty as matter of law.

"The law of warranty has undergone much change since Chandelor v. Lopus, Cro. Jac. 4, decided in the Exchequer Chamber in 1803. It was there held that an affirmation that the thing sold was a bezoar-stone was no warranty; for it is said, every one in selling his wares will affirm that they are good, or that the horse he sells. is sound, yet, if he does not warrant them to be so, it is no cause of action.

"But latterly courts have manifested a strong disposition to construe liberally in favor of the purchaser what the seller affirms about the kind and quality of his goods, and have been disposed to treat such affirmations as warranties when the language will bear that construction, and it is fairly inferable that the purchaser so understood it. Stone v. Denny, 4 Met. 155; Hawkins v. Pemberton, 51 N. Y. 198. And now 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 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. Foster v. Caldwell's Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Shippen v. Bowen, 122 U. S. 575. "But when the contract is in writing, it is for the Court to construe it, and to decide whether it contains a warranty or not. Wason v. Rowe, 16 Vt. 525. And by the

great weight of recent authority, positive statements in instruments evidencing contracts of sale, descriptive of the kind, or assertive of the quality and condition, of the thing sold, are treated as a part of the contract and regarded as warranties, if the language is reasonably susceptible of that construction and it is fairly inferable that the purchaser understood and relied upon it as such. “Thus, in Hastings v. Lovering, 2 Pick. 214, the salenote described the article as 'prime quality winter sperm oil.' The plaintiff declared in assumpsit on a warranty, and had judgment. In Henshaw v. Robins, 9 Met. 83, the bill of particulars affirmed the article to be indigo. The Court said that that imported an express warranty if it was so intended, and that it must be taken to have been so intended, as there was no evidence to the contrary. In Brown v. Bigelow, 10 Allen 242, a case exactly in point, these very words, sound and kind, were held to constitute a general warranty of soundness. In Gould v. Stein, 149 Mass. 570 (s. c. 14 Am. St. Rep. 455), a bought and sold note described the article as, 'Ceara scrap-rubber as per sample, of second quality.' The Court said that it did not admit of doubt that the note was intended to express the terms of the sale, and that the contract of the parties was to be found in what was thus written, read in the light of the attendant circumstances. Held, a warranty that the rubber was of second quality, and that the fact that the plaintiff made such examination of it as he pleased, did not necessarily do away with the warranty.

[Here the Court discusses numerous authorities.] "In Barret v. Hall, 1 Atk. 269, the note was payable in 'good cooking stoves.' The Court said that no definite quality could be intended from the term good, and that it imported nothing but opinion, and was no warranty, and referred to Chandelor v. Lopus, Cro. Jac. 4, for authority, which is no longer authority. But we do not say that the Court was wrong in that case, for good is a very common term of praise in trade, and as used in the note, ascribed no particular quality to the stoves, and might

well be regarded in that case as mere matter of opinion or commendation and as so understood by the parties.

"In Wason v. Rowe, 16 Vt. 525, the bill of sale said the horse was 'considered sound.' Held, no warranty; and with good reason, for 'considered' was no assertion of a fact, but a mere expression of opinion.

"The more recent cases in this state recognize the general rule that positive statements of fact by the seller in respect of the kind or the quality of the thing sold that constitute a part of the contract or form its basis and that are fairly susceptible of such a construction, are to be regarded as warranties.

"Thus, in Beals v. Olmstead, 24 Vt. 114, one of the reasons given why the defendant's statements ought to be regarded as warranties is, that they were made positively, and concerning matters as to which he was supposed and professed to have knowledge; therefore, it is said, he ought to expect to be bound by them. See also, Drew v. Ellison, 60 Vt. 401; Enger v. Dawley, 62 Vt. 164. "It is sufficiently certain as matter of construction that the words 'sound and kind,' found in the bill of sale before us, were intended by the parties to be a part of the contract of sale; and as such, it would be unreasonable to construe them as an expression of mere opinion, when they positively ascribe to the horses a condition and a quality that the defendant assumed to know they possessed and that he had peculiar means of knowing whether they possessed or not, while the plaintiff had no such means. We think the words, reading the instrument in the light of the attendant circumstances, clearly constitute an express warranty of soundness, and that the Chief Judge was right in so holding."

Judgment affirmed.

Question 291: (1) State the facts, the question presented and the Court's decision in the above case.

(2) Give six examples from this case of descriptions that were held to amount to warranties.

(3) Assume in this case that the seller did not know that the horse had a ringbone. Would he then be considered to have warranted?

(4) Give two cases here that the Court said were rightfully not considered warranties.

(b) Affirmation of Fact as Distinguished from Opinion or Prediction.

Case 292. Bain v. Withey & Ottman, 107 Ala. 223. Facts: Suits by Withey & Ottman against Bain on promissory notes executed by Bain. Bain defends that plaintiffs represented that they were the owners of a valuable patent right, and that they would sell and convey the same to him, authorizing him to make, sell and lease the right to use said patent in certain counties and further represented that said patent was a useful and beneficial invention; that said plaintiffs fraudulently concealed from the defendant that said patent was useless and worthless, while in fact said patent was of no value. Point Involved: Whether the statement by the seller that the thing sold was useful and beneficial, was a warranty.

COLEMAN, J.:

Neither of the pleas set up

a statement or representation as having been made by plaintiffs, as to the stability or durability of the fence. or its adaptability as a barrier to hogs, or to the cost of construction, or any fact characteristic of a fence made after the patent. The language of the plea in this respect is, that plaintiffs represented it 'as a valuable and useful improvement' but unaccompanied by the statement. of any fact which rendered it 'valuable and useful.' An expression of this character, made with reference to a patented improvement, standing by itself, not emphasizing a material fact, can be but the expression of an opinion, upon which a purchaser has no right to rely; and this is especially true when the patented improvement is constructed and put on exhibition, and the purchaser examines it for himself (citing cases). As stated by Benjamin on Sales, 316, 'the vendor is at liberty to praise his merchandise, in order to enhance its value, if he abstain from a fraudulent representation of facts,

provided the buyer have a full and fair opportunity of inspecting it, and no means are used for hiding the defects.' A buyer may always protect himself by requiring a warranty of such matters as (to which) he is unwilling to take the risk on his own judgment.

*

*

Question 292: (1) State the facts in this case, the question presented and what the Court decided.

(2) What did the Court suggest as statements that would have constituted warranties.

(3) A sold B wheat, stating that it was "good wheat." Is this a warranty? (Tex. Star Flour Mill Co. v. Moore, 177 Fed. 744.)

(Note: We will find hereafter that in many sales there is an implied warranty of merchantability, fitness for particular purpose, etc. In the cases now considered, assume there is no implied warranty.)

(c) The Reliance by the Buyer on the Affirmation.

Case 293. McCormick v. Kelly, 28 Minn. 135. Facts: Suit brought against Kelley on a promissory note given to McCormick for part of purchase price of a harvester. Defense, a breach of warranty. The evidence tended to prove that he got the machine before the harvest in 1878, on trial, that he used it to cut about 70 acres of grain but that it did not work well, that he complained about it, but was urged to keep it, and that he then purchased it, relying on defendant's assertions that it was a first class machine and would do good work, but knowing of the defects of which he now complains. The Court instructed the jury: "A vendor may warrant against a defect that is patent and obvious. You sell me a horse, and you warrant that horse to have four legs and he has only three. I will take your word for it." The Court then read from Addison on Contracts: "When a general warranty is given on a sale, defects which were apparent at the time of the making of the bargain and were known to the purchaser cannot be relied on as a ground of action. If one sells purple to another and saith to him "This is scarlet,' the warranty is to no purpose for that the other