nursery stock alive, evidence that the seed failed to sprout when properly planted has been held proof that the seed was not fertile, and evidence that fruit trees failed to survive the replanting has been held proof that they were not in good condition.12

436. Proof by "Comparison" or "Contrast."-"Evidence by comparison," while perhaps at first brushed aside as res inter alios acta, has made its way in the courts. And now, by the general weight of authority, proof of quality by comparison is admissible, provided the similarity of the subjects of comparison is reasonably sufficient to give the result of the comparison sound probative force. And this principle has been applied on the question in issue as to whether an article sold conformed with the warranty as to quality, condition or the like.18 Thus where one sold and installed a heater under a warranty that it would heat the building if properly operated, he may show in disproof of a claim by the buyer for breach of the warranty that other apparatus similar in character to that installed, when properly operated, satisfactorily heated the buildings in which they were installed.14 Likewise it has been held that the seller may show the excellence of shovel handles sold under a contract providing for many deliveries, by proof that, during the period of those deliveries which were complained of, he delivered handles of the same kind and quality to a third person, and that the handles so delivered to such third person were good.15 Evidence on behalf of the buyer to sustain his claim of defects in or unfitness of the article sold of the unfitness of similar articles sold third persons has, on the same principle, been held admissible where the similarity is sufficiently shown.16 On the other hand where the similarity to the object of comparison is insufficient, the excellence of the article sold may not be shown by proof of the excellence of such object of comparison.17 Thus it has been held that the seller in disproof of the claim that iron sold contained an excess of phosporus cannot show the amount of phosphorus contained in iron made in the same way in the same furnace from the same mine in other years, as this was not sufficient proof that the iron was of the same kind of ore as that in controversy.18 And in an action for the price of cigars sold by sample, where it was objected that the goods were not up to the sample, being damp and unfit for use, it was held error to permit the

12. See infra, par. 494.

13. Ames v. Quimby, 106 U. S. 342, 1 S. Ct. 116, 27 U. S. (L. ed.) 100; Waterman-Waterbury Co. v. Wyoming Tp. School Dist. No. 2, 182 Mich. 498, 148 N. W. 673, L.R.A.1915B 626. Note: L.R.A.1915B 627.

See EVIDENCE, vol. 10, p. 397 et seq., as to proof of other acts or transactions generally.

14. Waterman-Waterbury

Co.

Wyoming Tp. School Dist. No. 2, 182 Mich. 498, 148 N. W. 673, L.R.A. 1915B 626.

15. Ames v. Quimby, 106 U. S. 342, 1 S. Ct. 116, 27 U. S. (L. ed.) 100. 16. Note: L.R.A.1915B 632, 635 et seq.

17. Note: L.R.A.1915B 628, 634. 18. Albany, etc., Iron, etc., Co. v. Lundberg, 121 U. S. 451, 7 S. Ct. 958, v. 30 U. S. (L. ed.) 982.

plaintiff to show that at about the same time he furnished the cigars in question he also furnished cigars of the same kind to other purchasers who made no complaint that the cigars received by them had the defect specified by the defendant, as this was res inter alios acta, and wholly incompetent.19 Likewise where the similarity is insufficient, the unfitness of the article sold may not be shown by proof of the unfitness of another article.20

Express Warranties

437. In General.-To constitute an express warranty the term "warrant" need not be used; no technical set of words are required and it may be inferred from the affirmation of a fact which induces the purchase and on which the buyer relies and on which the seller intended that he should so do, but it has been said that the words used must be tantamount to a warranty, and not dubious or equivocal. It has frequently been held that affirmations in advertisements including circulars, catalogues or the like, relating to the kind and character of the article offered for sale may be the basis of express warranties, if the buyer had knowledge thereof and acted thereon; but the declarations of the seller at the time of the sale, limiting the effect of statements in an advertisement concerning the article sold, are admissible in an action by the buyer for a breach of warranty based on such statements, and if at the time of the sale the seller expressly states that no warranty is given and knowledge thereof is brought home to the buyer, he cannot rely on statements in advertisements of the sale as

21 Am. Dec. 571; Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916.

Notes: 6 Am. Dec. 114; 11 A. S. R. 879; 16 A. S. R. 753; 3 Eng. Rul. Cas. 461; 6 Eng. Rul. Cas. 502.

2. Weimer v. Clement, 37 Pa. St. 147, 78 Am. Dec. 411.

1. Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Towell v. Gatewood, 2 Scam. (J.) 22, 33 Am. Dec. 437; Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Osgood v. Lewis, 2 Har. 3. Herring v. Skaggs, 62 Ala. 180, & G. (Md.) 495, 18 Am. Dec. 317; 34 Am. Rep. 4; Snow v. Schomacker Henshaw v. Robins, 9 Metc. (Mass.) Mfg. Co., 69 Ala. 111, 44 Am. Rep. 83, 43 Am. Dec. 367; Kinley v. Fitz- 509; Blake v. Watson, 45 Conn. 323, patrick, 4 How. (Miss.) 59, 34 Am. 29 Am. Rep. 683; Henshaw v. Robins, Dec. 108; Kircher v. Conrad, 9 Mont. 9 Metc. (Mass.) 83, 43 Am. Dec. 367; 191, 23 Pac. 74, 18 A. S. R. 731, 7 L.R.A. 471; Chapman v. Murch, 19 Johns. (N. Y.) 290, 10 Am. Dec. 227; Fairbanks Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753; Sturges v. Circleville Bank, 11 Ohio St. 153, 78 Am. Dec. 296; Weimer v. Clement, 37 Pa. St. 147, 78 Am. Dec. 411; Beeman v. Buck, 3 Vt. 53,

Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Reiger v. Worth, 130 N. C. 268, 41 S. E. 377, 89 A. S. R. 865; Robson v. Miller, 12 S. C. 586, 32 Am. Rep. 518.

Note: 49 L.R.A. (N.S.) 1155.

4. Hadley v. Clinton County Imp. Co., 13 Ohio St. 502, 82 Am. Dec. 454.

constituting warranties. The courts are not inclined to construe as warranties affirmations by the seller made after the agreement for the sale, though before the article is delivered and the price paid. The fact that the seller purchased the article sold with a warranty is immaterial in determining whether he himself has given a warranty on the resale and certainly cannot itself import a similar warranty. The view has been taken that where the seller agrees to sell goods of a certain quality and ships goods to the buyer as complying with the contract and draws on the buyer for the price, which is paid before the arrival of the goods, this constitutes a warranty that the goods shipped are of the quality contracted for.8 And where an offer was made for certain merchandise "provided it was of a certain quality" which was accepted by the seller, it was held that there was a warranty that the merchandise was of the specified quality. If an express warranty is claimed, the burden of proving it is upon the buyer.10

438. Questions of Law and Fact Generally.-If the facts or affirmations relied on to prove an express warranty rest wholly or partly in parol, it is ordinarily the province of the jury to determine whether they amount to an express warranty; 11 but according to the better view the court must determine whether an affirmation contained in an agreement in writing amounts to a warranty or not,12 and the same has been held true as regards an undisputed and unequivocal oral affirmation.13 It has been held that the word "rebuilt" as used in a contract for the sale of a particular machine in which it is described as a "rebuilt" machine, which is understood to mean an old engine which has been made as good as possible and practically as good as new, constituted as a matter of law a warranty to such effect.14

5. Hadley v. Clinton County Imp. Co., 13 Ohio St. 502, 82 Am. Dec. 454. 6. Erwin v. Maxwell, 7 N. C. 241, 9 Am. Dec. 602. As to the time of making a warranty, see supra, par. 426.

7. Welsh v. Carter, 1 Wend. (N. Y.) 185, 19 Am. Dec. 473.

8. Forcheimer v. Stewart, 65 Ia. 594, 22 N. W. 886, 54 Am. Rep. 30. See also Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 Ñ. E. 372, 16 A. S. R. 753.

9. Holloway v. Jacoby, 120 Pa. St. 583, 15 Atl. 487, 6 A. S. R. 737.

10. Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 A. S. R. 890.

11. Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; McFarland v. Newman, 9 Watts (Pa.) 55, 34 Am. Dec.

497; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693.

Notes: 16 A. S. R. 758; 6 Eng. Rul. Cas. 502.

12. Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Hexter v. Bast, 125 Pa. St. 52, 17 Atl. 252, 11 A. S. R. 874; Kearly v. Duncan, 1 Head (Tenn.) 397, 73 Am. Dec. 179; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693; New Hamburg Mfg. Co. v. Webb, 23 Ont. L. R. 44, 20 Ann. Cas. 817.

Note: 11 A. S. R. 879.

13. Holmes v. Tyson, 147 Pa. 305, 23 Atl. 564, 15 L.R.A. 209.

Note: 6 Eng. Rul. Cas. 502.

14. New Hamburg Mfg. Co. v. Webb, 23 Ont. L. R. 44, 20 Ann. Cas. 817.

439. Statement of Opinion or Judgment.-In every action on a warranty it must be shown that there was an express and direct affirmation of the quality and condition of the thing sold, as distinguished from opinion, etc.,15 and in determining whether a statement of the seller is to be deemed a warranty, it is undoubtedly important to consider whether in the statement he assumes to assert a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment, and this has sometimes been spoken of as a decisive test.16 Where the representation or affirmation relates to that which is a matter of opinion or fancy, as, for example, the value of a horse or painting, it is to be regarded as an expression of opinion, rather than such a verification of a fact as will amount to a warranty, unless that idea is excluded by an express warranty, or such other declaration as leaves no doubt of the intention to make a warranty.17 So it has been held that a recital that a slave sold was of a certain age does not constitute a warranty, especially where the bill of sale included an express warranty of soundness; 18 and it has been held that a recital in a bill of sale of tobacco that it was "good first and second rate tobacco" should be deemed an expression merely of the seller's opinion and not a warranty of the quality.19 It has also been held that a statement by the seller that hogs sold are "suitable and proper for the New York City market" does not constitute a warranty, but is a mere expression of opinion.20 These principles are well exemplified by two early English cases involving the sale of paintings as to the effect of an affirmation as to the artist. In one case, which involved the sale of an old painting, an affirmation that it was by a certain one of the old masters was held not to constitute a warranty, because such fact could be ordinarily only the statement of an opinion, whereas in the other case, which involved the sale of a painting alleged to be by a modern artist, the question as to whether the affirmation was a warranty was left to the jury and its finding that it was a warranty was upheld. Though ordinarily an

15. Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; Seixas v. Woods, 2 Caines (N. Y.) 48, 2 Am. Dec. 215, overruled on another point by Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Chapman v. Murch, 19 Johns. (N. Y.) 290, 10 Am. Rep. 227; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428; Erwin v. Maxwell, 7 N. C. 241, 9 Am. Dec. 602.

Notes: 16 A. S. R. 753; Ann. Cas. 1913C 711.

16. Heilbut v. Buckleton, [1913] A. C. (Eng.) 30, Ann. Cas. 1913C 702 and note.

17. Towell v. Gatewood, 2 Scam. (Ill.) 22, 33 Am. Dec. 437.

18. Stucky v. Clyburn, Cheves L. (S. C.) 186, 34 Am. Dec. 590.

19. Towell v. Gatewood, 2 Scam. (Ill.) 22, 33 Am. Dec. 437.

20. Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428.

1. See Wolcott v. Mount, 9 Vroom (N. J.) 496, 20 Am. Rep. 425.

affirmation as to value falls within the rule as to dealer's talk and is also to a large extent a matter of opinion, value may nevertheless be the subject of an express warranty.

440. Intention of Parties.-It has frequently been said that the question whether an affirmation by the seller at the time of the sale or words of description are to be regarded as a warranty depends on the intention of the parties. And it has been said that though to constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty itself, nor evidence of it; that while in connection with other circumstances, it certainly may be taken into consideration, the jury must be satisfied from the whole that the seller actually, and not constructively, consented to be bound for the truth of his representation. This, however, is not a proper statement of the rule according to the modern authorities, if it is intended thereby to render the intention of the seller absolutely controlling, and it is now generally recognized that in order to constitute a warranty it is not necessary that the representations or affirmations should have been intended by the seller as a warranty. If the representation is clear and positive, not a mere expression of opinion, and the buyer understands it as a warranty, and relying on it purchases, the seller cannot escape liability by claiming that he did not intend what his language declared; and there is no distinction in principle between a representation as to the quality and condition of an article and one as to its character; what would amount to a warranty in the one case is a warranty in the other. So if the writing contains that which amounts to a warranty, the seller will not be permitted to say that he did not intend what his language clearly and explicitly declares.

441. Affirmations as to Quantity or Size.—Ordinarily it would seem that a statement by the seller as to the weight or quantity of specific commodities sold is to be regarded as a statement or expression of opinion rather than an assertion of fact, and is not to be deemed a warranty, and this is especially true when the statement is qualified

2. Handy v. Waldson, 18 R. I. 567, (N.S.) 274; Ann. Cas. 1913C 711; 6 29 Atl. 143, 49 A. S. R. 794. Eng. Rul. Cas. 502.

3. Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425; Seixas v. Woods, 2 Caines (N. Y.) 48, 2 Am. Dec. 215, overruled on another point by Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Swett v. Colgate, 20 Johns. (N. Y.) 196, 11 Am. Dec. 266; McFarland v. Newman, 9 Watts (Pa.) 55, 34 Am. Dec. 497; Heilburt v. Buckleton, [1913] A. C. (Eng.) 30, Arn. Cas. 1913C 702.

Notes: 16 A. S. R. 758; 35 L.R.A.

4. McFarland v. Newman, 9 Watts (Pa.) 55, 34 Am. Dec. 497.

5. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753 and note.

Note: 6 Eng. Rul. Cas. 502.

6. Notes: 2 Am. Dec. 221; 6 Am. Dec. 115.

7. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753.