may perceive this; and this gives no cause of action to him. To warrant a thing that may be perceived at sight is not good." After reading this quotation the Court then said: "Gentlemen, that is not the law of this state." Defendant had a verdict and judgment, and McCormick now appeals, alleging error in the instructions to the jury. Point Involved: Whether a general express warranty covers a known defect. "The Court erred in these instructions to the jury. It has always been held that a general warranty should not be considered as applying to or giving a cause of action for defects known to the parties at the time of making the warranty, and both the weight of authority and reason authorize this proposition, viz., that for representations in the terms or form of a warranty of personal property, no action will lie on account of defects actually known and understood by the purchaser at the time of the bargain. In the nature of things one cannot rely upon the truth of that which he knows to be untrue; and to a purchaser fully knowing the facts in respect to the property, misrepresentation cannot have an inducement or consideration to the making of the purchase, and hence could have been no part of the contract. "It has often been said that a general warranty may cover patent defects, and it has led to some misapprehension of the law. The proposition is strictly true, but, as was said by the court in Marshall v. Drawhorn, supra, it is 'confined to those cases of doubt and difficulty where the purchaser relies on his warranty, and not on his own judgment.' It has no application to the case of a purchaser who knows the defects in the property and the untruthfulness of the vendor's representations. We do not, however, mean to say there may not be a warranty against the future consequences or results from even known defects." Question 293: (1) State the facts, the question presented and the Court's decision in the above case. (2) What is the reason that a general warranty is not to be considered as covering a known defect? (3) A is about to purchase a horse. He notices what appears to him a defect in the horse's eye, but B, the seller, assures him that the eye is all right, and he will warrant it sound, whereupon A purchases the horse. Can he recover if the eye is unsound? (4) A sells B a horse which has a blind eye, and this B could have discovered had he gone out to the barn about 20 feet away, where the horse was standing. He does not, however, and relies on A's warranty that the horse is sound. Can he recover for the blindness of the eye? (Thompson v. Bertrand, 23 Ark. 730 [Sale of a slave warranted to be sound whose unsoundness would have been apparent on inspection].) Case 294. Mitchell v. Pinckney, 127 Iowa, 696. · Facts: Plaintiff purchased of defendant 21 head of cows. He now sues for breach of a warranty that they were sound, alleging that they were afflicted with a contagious disease. The Court on the evidence presented instructed the jury the warranty need not be the sole inducement to the purchase, but that it must have been operative in causing the sale. This instruction is now alleged on appeal as error. It is also claimed as error that there was no positive evidence by plaintiffs that he relied on the warranty. Point Involved: Whether the warranty must be the sole inducement of the sale. Whether the purchaser has the burden of proof of showing that he relied on the warranty, or where, no evidence to the contrary, his reliance may be presumed. DEEMER, J.: "But it is said that there is no evidence that plaintiffs relied upon the warranty or representations, or that they induced the sale. The Court instructed, in effect, that the warranty need not be the sole inducement to the purchase, but that it must have been operative in causing the sale. This, of course, is the law. Rose v. Meeks, 91 Iowa, 715; Tewkesbury v. Bennett, 31 Iowa, 85; Powell v. Chittick, 89 Iowa, 513. "But it is not necessary that proof of reliance thereon be by the positive testimony of the buyer. It is sufficient if, considering all the circumstances, such fact fairly appears. Case Co. v. McKinnon, 82 Minn. 75 (84 N. W. 646); Ormsby v. Budd, 72 Iowa, 80. Indeed, we have held that where the warranty is a part of the contract of sale, and a part of the consideration of the purchase price, the purchaser need not show by direct evidence that he relied upon it, as the law will presume that he did. Norris v. Kipp, 74 Iowa, 444." Question 294: State how the purchaser may make a prima facie case that he relied on the warranty? (Note: While it is true that a statement to constitute a warranty must be one that was meant to be relied upon and was relied upon by the buyer, that rule would seem to mean hardly more than this, that the case must show that the seller made the statement for the purpose of making it a part of his obligation, and that the buyer received it as such. If the buyer knows that the statement is untrue, he cannot rely upon it. But if he does not absolutely know, to the contrary, or is in doubt, he may take the seller's word for it. And it is in this sense only that he must have relied upon it. "It is not necessary that it should be true that the buyer would not have purchased but for the warranty. If, in addition to the transfer of property, he can for the same price or for a greater price, obtain the seller's agreement to insure the quality of the goods, such agreement goes with the goods as a part of the consideration, and the buyer is entitled to the benefit of his bargain in this regard, whether he would or would not have bought the goods without this additional consideration." (McCarty v. Williams, 58 Ind. Ap. 440, 108 N. E. 370.) ) Case 295. Smith v. Hale, 158 Mass. 178. Facts: Alleged breach of warranty on the sale of a buggy, to the effect that it would carry the purchaser and her husband and "a hundred of meal." Three days after the buggy was purchased a spring broke. The seller asked the court to instruct the jury "that where a purchaser inquires for himself, and acts upon his own opinion he cannot say he has been misled by the false statement of another; and if he inspects and examines the articles for himself and selects it after exercising his own judgment upon its character and quality, the vendor only warrants that the article so far as he knows, is what it appeared to be, at the time he sold it." The Court refused to give this instruction and the plaintiff appeals, alleging this refusal as error. Point Involved: Whether an inspection by the purchaser precludes his reliance upon an express warranty. ALLEN, J.: 66* * The plaintiff's third request does not contain a correct statement of the law applicable to the case. * it is enough to say that a purchaser of an article may examine it for himself and exercise his own judgment upon it and at the same time may protect himself by taking a warranty. The refusal to give the instructions requested was entirely right. * *99 Question 295: May there be an express warranty notwithstanding the buyer examined the goods before he bought them? Suppose the examination had actually made known to him the defect now complained of? § 330. (Sales, Sec. 43.) Whether alleged oral warranties provable if contract in writing. (Note: See Seitz v. Brewers' Refrig. Co., 141 U. S. 510. supra § 128. If the contract is put in written form with the evident intention of including all the obligations of the seller therein, the parol evidence rule would forbid the proof of the alleged oral warranty. It will be remembered, however, that the parol evidence rule does not forbid proof of fraud, if the case is founded in tort, and if the facts show fraud.) B. Implied Warranties. § 331. Doctrine of caveat emptor. § 332. § 333. § 334. § 335. The implied warranties in a sale by description. § 336. Implied warranties in a sale by sample. § 337. The implied warranties of fitness for purpose bought. § 338. Warranties do not run with personal property. § 339. Right of remote purchaser to sue in tort. § 331. (Sales, Sec. 44.) Doctrine of caveat emptor. Case 296. Jones v. Just, L. R. 3 Queen's Bench, 197. 66* * MELLOR, J.: Where goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination at least where the seller is neither the grower nor the manufacturer: Parkinson v. Lee, 2 East, 314. The buyer in such a case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be unsatisfactory or if he distrusts his own judgment, he may, if he chooses, require a warranty. In such a case it is not an implied term of the contract of sale that the goods are of any particular quality or are merchantable." Question 296: If I sell you an automobile and do not expressly warrant it, do I impliedly undertake anything as to its condition? What doctrine expresses the situation as to the rights of the buyer? Suppose I am a manufacturer of automobiles, or a dealer in them, do I impliedly warrant that the automobile is in good condition where the buyer inspects the particular automobile that he buys? (See following note.) (Note: Sale of specific article where seller is manufacturer or dealer. The Sales Act (sec. 15(2) (3) ) provides, "Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be of merchantable quality. If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed." It is suggested that the sales act should go further and define what is meant by "sale by description." Will it include a sale of specified goods which are before the parties? If a buyer orders an automobile |