warranty. trade. Again, a warranty may be presumed from the Implied non-compliance of an usage of trade to specify certain defects. Thus, where it was proved to be By usage of a custom of trade, in the sale of pimento (and other drugs), if sea-damaged, to express this in the catalogue of sale, it was held that the defendant, who had sold a quantity of sea-damaged pimento without notifying the deterioration, was liable to the purchaser, and that the implied contract was in effect a sale of the drugs, as and for drugs that were not sea-damaged (k). So, where sheep were sold as "stock," and by the custom of the trade "stock" were understood to be sheep that were sound, this was held to amount by implication to a warranty of soundness (1). for specific purpose. Again, in every contract to supply a manu- Chattel sold factured article for a particular purpose, there is an implied warranty that it will answer the purpose to which it is to be applied. "The law resolves itself into this, that, if a man sells gene 1002; S. C. 3 N. & M. 40. The cases of Gwillim v. Stone, 3 Taunt. 433, George v. Pritchard, Ry. & Moo. 417, contra, cannot be supported; See 5 B. & Ad. 1000, 1002. And see Purvis v. Rayer, 9 Price, 488; S. C. 1 Sugd. Vend. 335, (9th Ed.). It should seem that à fortiori a warranty of title ought to be implied in sales of chattels personal; for the reason formerly given for the rule that there was no implied warranty in the sale of an estate was, that the purchaser might inspect the titledeeds and satisfy himself as to the title. See a MS. note in 3 T. R. 57, in Lincoln's Inn Library. (k) Jones v. Bowden, 4 Taunt. 847. (1) Anon. cited by Heath, J., 4 Taunt. 853. Implied warranty. How declared upon. rally, he undertakes that the article sold shall be fit for some purpose; if he sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose" (m). Therefore, where copper was sold for the purpose of sheathing a ship, and the defendant undertook "to supply the purchaser well," it was held that the plaintiff might recover on an implied warranty; the copper supplied under the contract being proved to have been utterly unserviceable, and to have lasted only four months, instead of four years, the average duration (n). On the same principle, where the commodity is purchased for the purpose of sale, it is an implied condition that it shall be saleable (o); especially where it is intended to be shipped for a foreign market, and the purchaser has no opportunity of inspection (p). But where the purchaser relies upon such implied warranty, he ought to frame his declaration accordingly. Thus, where the plaintiff declared on a general warranty, that certain plates of copper (m) Per Best, C. J., 5 Bingh. 546. See 4 B. & C. 115; Laing v. Fidgeon, 6 Taunt. 108; Gray v. Cox, 1 C. & P. 186. (n) Jones v. Bright, 5 Bingh. 533; S. C. Dan. & Lloyd, Merc. Ca. 304. Abbott, C. J., said that there was some diversity of opinion on the subject; See 4 B. & C. 115. (0) Gardiner v. Gray, 4 Campb. 144: Holcombe v. Hewson, 2 (p) Laing v. Fidgeon, 4 Campb. 169. warranty. sheathing supplied by the defendant should be of Implied good, sound, substantial and serviceable quality, and the proof was, that there had been no express warranty, but that the copper had been sold at the market-price as "sheathing-copper" for coppering a ship, it was held, that, although the copper was proved to have been utterly unserviceable and unfit for the purpose required, the plaintiff could not recover, as a general warranty could not be intended to arise from such a contract (q). II. THE BREACH. In an action on an express warranty, it is imma- Breach. terial whether the seller was ignorant or cognizant of the defect; therefore, if a man warrants a horse, he does so at his own peril, if the horse was unsound at the time of the sale, though he knew it not (r). And even if it be alleged in the declaration that the vendor was aware of the defect, the allegation is immaterial and need not be proved; whether the action be laid in assumpsit or in case (s): but if no express warranty is relied on, (q) Gray v. Cox, 4 B. & C. 108; S. C. 6 D. & R. 200. (r) Anon. Lofft, 146. For the rule is, that, either express warranty without knowledge, or knowledge without warranty, will make the vendor liable. See 1 Dougl. 21, n. (s) Williamson v. Alison, 2 East, 146; Gresham v. Postan, 2 C. & P. 540; Anon. v. Purchase, cited 2 East, 448; Denison v. Ralphson, 1 Ventr. 366, per Curiam. Breach. and the plaintiff sues in an action for the deceit, the scienter being the gist of the action, must be both charged and proved (t). Qualification as to SUBJECTMATTER. In considering the proof necessary to support the breach, the extent of the warranty becomes a matter of inquiry; and this may be narrowed by either express or implied qualification. I. Extent generally. 1. Express Qualification. When the warranty is qualified in respect of the subject warranted, or in respect of the time to which it extends, the vendor will not be liable beyond. Thus, in the following warranty:"To be sold, a black gelding, five years old; has been constantly driven in the plough; warranted:"-it was held that the warranty extended to soundness only, and not to age (u) And a similar decision was given, where the warranty was contained in a receipt as follows:-" Received of J. S. (the plaintiff) £10 for a grey four-years' old colt, warranted sound in every respect :"-the age being (t) Dowding v. Mortimer, 2 East, 450, n.; Horncastle v. Moat, 1 C. & P. 166.-Supra. (u) Richardson v. Brown, 1 Bingh. 344; S. C. 8 B. Moore, 338. held to be mere matter of description (r). So, Breach. where a horse is sold with a warranty of soundness, and a representation of the place from which he came, it will be sufficient if he answers the general warranty of soundness, though the place be misdescribed (y). On the same principle, where the seller declines to warrant, further than expressing his own opinion, he will only be liable on a warranty that the chattel is sound to the best of his knowledge and belief (z); or, where he represents it according to a written description which he himself has received, but for the truth of which he does not vouch, he is not liable if the written description be false (a). However, where the defendant relies on a subsequent condition qualifying and limiting the warranty, he must distinctly show the connection (b), and that the qualification related to the whole warranty, or at least to the particular breach complained of (c). And the qualification must consist with the general terms of the undertaking: thus, where a ship was warranted "copper-fastened," but by the agreement the purchaser was to take (x) Budd v. Fairmanner, 8 Bingh. 48; S. C. 1 M. & Sc. 74. (b) Best v. Osborne, 2 C. & P. 74. (c) Buchanan v. Parnshaw, 2 T. R. 745. |