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206. Whether a particular engagement of the seller is an essential term of the sale contract, and hence a condition, or is collateral to its main purpose of transferring the title and possession of a chattel, and, therefore, a warranty, depends upon the intention of the parties as disclosed by the language of the contract and the attendant circumstances. It is perfectly competent to the parties to agree that any stipulation in the sale contract shall form one of its essential terms. When this agreement is explicit, the task of the courts is easy; but when no express agreement upon this point appears, they are compelled to determine from the entire transaction "whether the particular stipulation goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the 'promisor' a thing different in substance from what the" promisee "has stipulated for; or whether it merely partially affects it, and may be compensated for in damages." 1

207. The earlier cases on this subject were decided upon distinctions so nice and technical that no rule was deducible from them.2 Later, attempts were made to lay down definite rules for discovering whether the parties intended a stipulation to be a condition or a warranty; 3 but, being more or less artificial, they did not meet with general acceptance. In this country the courts have declared that in determining the question now under discussion, they "are to be governed, not by technical and artificial rules, but by the true intention of the parties as expressed by the language of the contract."4 This doctrine has received

1 Bettini v. Gye, 1 Q. B. D. 183, 188 (1876), applying the rule stated by Parke, B., in Graves v. Legg, 9 Ex. at p. 716 (1854), where it was held that a stipulation that "the names of the vessels to be declared as soon as the wools were shipped" was a condition or essential term of the contract for the sale of the wools.

2 Pordage v. Cole, 1 Saund. 319, note 2 (ed. 1871, p. 549).

Benjamin on Sales (ed. 1899), § 562 (a modified statement of the rules in the note to Pordage v. Cole, supra).

Howland v. Leach, 11 Pick. (28 Mass.) 151, 154 (1831); Maryland Co. v. Lorentz, 44 Md. 218, 232 (1875). "Our duty is to construe the contract in evidence by the standard of intention apparent on its face."

legislative approval in Great Britain;' but has been rejected by the Uniform Sales Act.2

(A) Express Warranties.

208. It is not necessary that the word "warranty" be used." Any statement of fact by the seller upon which the buyer rightfully relies as a material inducement to his entering into the sale contract, if not one of its essential terms, is a warranty.1

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209. Fact versus Opinion and Commendation. A representation by the seller that certain tobacco which he offered to the buyer was "first and second rate,' or that a railroad bond was "A No. 1," has been deemed an expression of opinion, rather than the assertion of a fact. Such puffing statements are to be distrusted by the buyer. This rule of law, it is said, is hardly "to be regretted, when it is considered how easily and insensibly words of expectation are converted by an interested memory into statements of quality and value when the expectation has been disappointed." The declarations by the seller that certain sheep would shear from three to nine pounds a head, and that the buyer could pay for the sheep by their wool in two years, and have wool left, are matters of opinion, but an assertion that the sheep are young and healthy is one of fact.

1 Brown's Sale of Goods Act, 49, 50. See the editor's criticism of the English rules of construction and the reasons assigned for not incorporating them in the statute. It is expressly declared in § 11 (1), (b); “A stipulation may be a condition, though called a warranty in the contract." 2 Mass. L. 1908, ch. 237, § 11. See supra, ¶ 140.

Chapman v. Murch, 19 Johns. 290 (1822); Burdick's Cases on Sales, 392; Riddle v. Webb, 18 So. 323; 110 Ala. 599 (1895); Larson v. Calder, 16 N. D. 248; 113 N. W. 103 (1907); Davis v. Berkheimer, 152 Ia. 270; 132 N. W. 377 (1911).

4 Uniform Sales Act, Mass. L. 1908, ch. 237, § 12.

Towell v. Gatewood, 3 Ill. 22 (1839); cf. Hobart v. Young, 63 Vt. 363; 21 At. 612 (1891).

* Deming v. Darling, 148 Mass. 504, 506; 20 N. E. 107 (1889); cf. Woolsey v. Zieglar, 32 Okla. 715; 123 Pac. 164 (1912); "a first class No. 1 milk cow," an express warranty.

Accord,

7 Deming v. Darling, 148 Mass. 504, 506; 20 N. E. 107 (1889). Robertson v. Halton, 156 N. C. 215; 72 S. E. 316 (1911); Elgin v. Snyder, 60 Ore. 297; 118 Pac. 280 (1911).

8 Bryant v. Crosby, 40 Me. 9, 18 (1855). That a young and untried

Generally, a seller's statements as to the value of his goods are treated as expressions of opinion; but if he declares that they are selling in market at a named price, or that they are the only articles of their kind which can be bought for that price, the buyer may rely on such declarations as statements of fact.1

210. Sales by Description. — In England and in many of our jurisdictions, "where there is a contract for the sale of goods by description, there is an implied condition, that the goods shall correspond with the description," and the buyer "may elect to treat the breach of such condition as a breach of warranty."2 Some of our courts, however, have construed words of description in contracts for the sale of specific existing goods as mere expressions of opinion by the seller concerning the character of the article sold, and therefore not available to the buyer as warranties.

211. In an early New York case, the Supreme Court held that a vendor who advertised and sold wood as brazilletto, when in fact it was peachum, an entirely different article and of slight value, did not warrant the wood to be brazilletto and was not liable to the buyer for damages, in the absence of fraud. Said Justice Kent, "To make an affirmation at the time of sale a warranty, it must appear by evidence to be so intended, and not to have been a mere matter of judgment and opinion, and of which the defendant had no particular knowledge. Here it is admitted the defendant was equally ignorant with the plaintiffs, and could have had no such intention." 3 212. Intention of Seller. Whether the seller's statement of fact amounts to a warranty depends not on his undisclosed

stallion will "make his mark as a foal-getter," is a matter of opinion and prediction; Roberts v. Applegate, 153 Ill. 210; 36 N. E. 676 (1894); but the assertion that a stallion is a reasonable foal-getter is one of fact; Eyers v. Haddem, 70 Fed. 648 (1895); Burdick's Cases on Sales, 440.

1 Peck v. Jenison, 99 Mich. 326; 58 N. W. 312 (1894).

2 Sale of Goods Act, 1893, §§ 11, 13.

Seixas v. Woods, 2 Caines, 48, 55 (1804); followed in Swett v. Colgate, 20 Johns. 196 (1822). The cases are virtually overruled in New York. See White v. Miller, 71 N. Y. 118 (1877), although cited with approval in Ives v. Ellis, 50 App. Div. 399 (1900); which was reversed, 169 N. Y. 85 (1901). Cf. Hodges v. Smith, 158 N. C. 256; 73 S. E. 807 (1912).

thought, but upon the impression which his conduct is "calculated to produce upon the mind of the vendee." "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 character or quality of the article sold be positive, not mere matter of opinion or judgment, and the vendee understands 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." Such, at least, is the prevailing view, and the only one to be supported upon principle.2

If the seller, after making representations which would amount to a warranty expressly declines to warrant the article, the buyer is in no position to assert a warranty; the representations must be deemed mere expressions of opinion. The statement by the seller of a horse, that "he is sound to the best of my knowledge, but I will not warrant him, I will not even warrant myself," has been held, however, to amount to a modified warranty that the horse was sound to the best of the seller's knowledge.4

213. Peculiar Views. — In a few jurisdictions a different doctrine prevails. The Indiana courts hold that a mere affirmation of soundness "is not per se a warranty. It is 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." 995

1 Hawkins v. Pemberton, 51 N. Y. 198, 202 (1872); Ingraham v. Union Co., 19 R. I. 356; 33 At. 875 (1896); Burdick's Cases on Sales, 392. Cf. Rauth v. Southwest Warehouse Co., 158 Cal. 54, 60; 109 Pac. 839 (1910); that buyer asked for "barley" is not evidence that seller engaged to supply "bearded barley."

2 Anson on Contracts, Huffcut's ed., p. 169, p. *137.

3 Lynch v. Curfman, 65 Minn. 170; 68 N. W. 5 (1896).

4 Wood v. Smith, 5 M. & R. 124 (1842).

House v. Fort, 4 Blackford, 293, 296 (1837). In this case the buyer asked as to the horse's eyes, and the seller said, "They are as good as any horse's eyes in the world." Cf. Kircher v. Conrad, 9 Mont. 191 (1890), (buyer asked for spring wheat, and when the wheat was shown to him said, "Are you sure it is spring wheat?" and the seller replied, "What do you take me for?" Held, not a warranty).

In a leading Pennsylvania case it is said: "The naked averment of a fact is neither a warranty itself nor evidence of it. In connection with other circumstances it certainly may be taken into consideration; but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation." 1 Judge Gibson deemed this view the only one consistent with the doctrine of caveat emptor. Later cases in that State have approved it, because it discourages those who are disappointed in the advantages expected from a bargain from drowning their 66 sorrows in the excitement of an action at law." 2

According to Vermont decisions, "to constitute a representation a warranty, it must have been so intended and understood by the parties, both vendor and vendee; or intended by the parties as a part of the contract; or have formed the basis of the contract." 993

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214. May include Patent Defects. - Words of general warranty will not be construed, as a rule, to cover defects which are obvious to the buyer, in the sale of specific chattels. Hence, a warranty of soundness does not extend to a bunch on a horse's leg which was seen by the purchaser; but it does cover crooked joints and lameness, or foot-rot," or blindness," when the buyer does not in fact inspect the animals and relies on the seller's representation, although he has an opportunity of inspection. "But the warranty may be so expressed as to protect the buyer against the consequences growing out of a patent defect; " 8 as where the seller warrants sheep to be free from foot-rot, although the buyer has discovered, as he believes, that they

1 McFarland v. Newman, 9 Watts, 55 (1839).

2 Wetherill v. Neilson, 20 Pa. 448, 453 (1853); Mahaffey v. Ferguson, 156 Pa. 156, 170; 27 At. 21 (1893). In the earlier of these cases, the seller's statement that certain soda-ash then afloat was of 48 degrees strength, English test, was held to be a representation and not a warranty.

3 Enger v. Dawley, 62 Vt. 164, 165; 19 At. 478 (1890). Leavitt v. Fletcher, 60 N. H. 182 (1880).

5 Kenner v. Harding, 85 Ill. 264, 269 (1877).

First Nat. Bank v. Grindstaff, 45 Ind. 158 (1873).

7 Hardy v. Stoppel, 162 Mich. 676; 127 N. W. 703 (1910). Benjamin on Sales (Bennett's ed., 1899), § 616.

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