by the word "about" or the like. And where there was incorporated into a bill of sale of a vessel for the purpose of describing her the certificate of the ship carpenter under whose supervision she was built giving her dimensions and tonnage, which was followed by a general warranty of title, it has been held that this is not to be deemed a warranty that the measurements and tonnage are correctly given. If, however, the circumstances show that it was the intention of the parties that a statement of this character was a statement of a fact on which the buyer should rely, it will be treated as a warranty, and where goods shipped to the buyer were invoiced as containing a certain quantity this has been treated as a warranty.10

442. Affirmations as to Quality or Condition Generally.-While the soundness or policy of the rule permitting warranties to be based on affirmations by the seller as to the quality or condition of the chattel sold has been vigorously protested, it is generally recognized, especially in the more modern cases, that such affirmations may constitute a warranty, if so intended by the parties and relied on by the buyer as such; 12 and it has been held that the same principle applies where the affirmation relied on is contained in a writing, such as a bill of sale, and where it is made orally in a sale so effected, as the language means the same whether written or spoken.13 It has also been said that the tendency of all the modern cases on warranty is to enlarge the responsibility of the seller; to construe every affirmation

8. Brawley v. U. S., 96 U. S. 168, 24 U. S. (L. ed.) 622. As to the meaning given to the word "about" or similar indefinite expressions, see supra, par. 176 et seq. (quantity); 194 (time of delivery).

9. Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56.

10. Hargoeus v. Ablon, 3 Den. (N. Y.) 406, 45 Am. Dec. 481.

130 N. C. 268, 41 S. E. 377, 89 A. S. R. 865; Holloway v. Jacoby, 120 Pa. St. 583, 15 Atl. 487, 6 A. S. R. 737; Hexter v. Bast, 125 Pa. St. 52, 17 Atl. 252, 11 A. S. R. 874; Grotzinger v. Kann, 165 Pa. St. 578, 30 Atl. 1043, 44 A. S. R. 676; Kearley v. Duncan, 1 Head (Tenn.) 397, 73 Am. Dec. 179; Jorgensen v. Gessell Pressed Brick Co., 45 Utah 31, 141 Pac. 460, Ann.

11. McFarland v. Newman, 9 Watts Cas. 1917C 309; Beeman v. Buck, 3 (Pa.) 55, 34 Am. Dec. 497.

Vt. 53, 21 Am. Dec. 571; Beals v. Ölmstead, 24 Vt. 114, 58 Am. Dec. 150; Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 A. S. R. 122; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693; Hahn v. Doolittle, 18 Wis. 196, 86 Am. Dec. 757; Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916; King v. Graef, 136 Wis. 548, 117 N. W. 1058, 128 A. S. R. 1101, L.R.A. (N.S.) 86.

12. Shippen v. Bowen, 122 U. S. 575, 30 U. S. (L. ed.) 1172; McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 A. S. R. 88; Forcheimer v. Stewart, 65 Ia. 593, 22 N. W. 886, 54 Am. Rep. 30; Lamme v. Gregg, 1 Metc. (Ky.) 444, 71 Am. Dec. 489; Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Rutter v. Blake, 2 Har. & J. (Md.) 353, 3 Am. Dec. 550; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; Thompson v. Tate, 5 N. C. 13. Lamme v. Gregg, 1 Mete. (Ky.) 97, 3 Am. Dec. 678; Reiger v. Worth, 444, 71 Am. Dec. 489.

20

Notes: 6 L.R.A. 374; 35 L.R.A. (N.S.) 260 et seq.; 6 Eng. Rul. Cas. 502.

by him to be a warranty, and frequently to imply a warranty on his part from acts and circumstances, wherever they were relied upon by the buyer, and that the maxim of caveat emptor seems gradually to be restricted in its operation, and limited in its dominion, and beset with the circumvallations of the modern doctrine of warranty, until it can no longer claim the empire over the law of sales, and is but a shadow of itself.14 It seems to be generally recognized that a recital in a bill of sale describing the chattel sold as sound or the like should be deemed a warranty,15 as where, while slavery was in existence, a slave was sold and described in the bill of sale as sound; 16 and this has been held true even though in a later part of the instrument an express warranty of title was inserted.17 So where an offer was made to sell "thoroughly tanned" leather and the offer was accepted provided the leather "is thoroughly tanned" this was held to import a warranty that the leather was "thoroughly tanned." 18 So where a carload of potatoes contained in sacks was sold and after the buyer had examined a few sacks, the seller stated that the balance were of the same quality and in the same condition, and all could not be examined without the expenditure of a great deal of time, it was held that the jury was justified in finding that such statement constituted a warranty.19

443. Qualification of Rule; Dealer's Talk; Questions for Jury.While the modern view is as stated in the preceding paragraph there are numerous cases holding that the mere expression of an opinion of the character or quality of goods sold will not amount to a warranty, a seller being permitted to exaggerate, puff or enhance the quality, thus adopting the maxim of the civil law, simplex commendatio non obligat; 20 and this view is also taken where it is sought to base a charge of fraud on what is commonly called dealer's talk. It has

14. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658.

15. Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; Kearley v. Duncan, 1 Head (Tenn.) 397, 73 Am. Dec. 179; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693. 16. Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; Kearley v. Duncan, 1 Head (Tenn.) 397, 73 Am. Dec. 179.

17. Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108.

18. Groetzinger v. Kann, 165 Pa. St. 578, 30 Atl. 1043, 44 A. S. R. 676. (It is to be noted as shown above that the Pennsylvania court in an earlier case vigorously protested against the policy of permitting warranties to be based on affirmations as to quality or condition.)

19. King v. Graef, 136 Wis. 548, 117 N. W. 1058, 128 A. S. R. 1101, 20 L.R.A. (N.S.) 86.

20. Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428; Erwin v. Maxwell, 7 N. C. 241, 9 Am. Dec. 602; McFarland v. Newman, 9 Watts (Pa.) 55, 34 Am. Dec. 497; Wetherill v. Neilson, 20 Pa. St. 448, 59 Am. Dec. 741; Holmes v. Tyson, 147 Pa. 305, 23 Atl. 564, 15 L.R.A. 209; Jarecki Mfg. Co. v. Kerr, 165 Pa. 529, 30 Atl. 1019, 44 A. S. R. 674 (affirmation that an article is as good as any in the market); Westmoreland v. Dixon, 4 Hayw. (Tenn.) 223, 9 Am. Dec. 763; Carver-Shadbolt Co. v. Loch, 87 Wash. 453, 151 Pac. 787, L.R.A.1917C 1076. Note: 6 Am. Dec. 114. 1. See infra, par. 631.

been said that it is especially important that this should be the rule as to representations of the quality of goods sold; for there is nothing on which people are more apt to differ, and nothing on which they are less apt to trust each other. In the sale of machinery or the like statements as to economy of operation seem to be generally treated as dealer's or sale talk, and not warranties. Thus a statement by a seller of a haystacker to induce a prospective customer to exchange a machine in use by him for the seller's machine that the latter would stack hay at a certain amount per ton cheaper than the old one has been held mere sale talk, and not a warranty. This, however, does not prevent statements as to economy of operation from constituting warranties where the buyer was justified in relying on them as such and did so rely, trusting to the superior knowledge of the seller, as where he was the manufacturer. It has been held that evidence of a special custom among certain traders, making common words of representation as to quality words of warranty, is not admissible, as it tends to vary the general rule of law that such a representation does not constitute a warranty. The line which separates a case of mere puffing and commendation from a case where there is an affirmation of a matter of fact which will constitute a warranty is sometimes indefinite, and then a perplexing question arises as to the meaning or intention of the seller. As a general rule at this point comes in the province of the jury, when it must be determined as a matter of fact whether a warranty was intended."

444. Sale of Second Hand Article.-It is the general rule that there is no implied warranty as to the condition, adaptation, or suitability for the purpose for which made or the quality of an article sold as and for a second hand article. There may, however, be an express warranty of an article though sold as and for a second hand one, and it has been held that the word "rebuilt" as used in a written contract for the sale of a particular machine, describing the machine

2. Wetherill v. Neilson, 20 Pa. St. 444, 71 Am. Dec. 489; Tuttle v. Brown, 448, 59 Am. Dec. 741.

3. Note: L.R.A.1917C 1078.

4. Carver-Shadbolt Co. v. Loch, 87 Wash. 453, 151 Pac. 787, L.R.A.1917C 1076.

5. Davis Calyx Drill Co. v. Mallory, 69 C. C. A. 662, 137 Fed. 332, 69 L.R.A. 973.

Note: L.R.A.1917C 1078.

6. Wetherill v. Neilson, 20 Pa. St. 448, 59 Am. Dec. 741. As to the validity of customs varying a general rule of law as applied to saler, see supra, par. 229 et seq.

7. Lamme v. Gregg, 1 Metc. (Ky.)

4 Gray (Mass.) 457, 64 Am. Dec. 80;
Chapman v. Murch, 19 Johns. (N. Y.)
290, 10 Am. Dec. 227. See also Lord
v. Grow, 39 Pa. St. 88, 80 Am. Dec.
504; Beals v. Olmstead, 24 Vt. 114, 58
Am. Dec. 150.

Note: 6 Am. Dec. 114.
8. See infra, par. 461.

9. Fairbanks Steam Shovel Co. v. Holt, 79 Wash. 361, 140 Pac. 394, L.R.A.1915B 477 (explaining and limiting the statement in an earlier case); New Hamburg Mfg. Co. v. Webb, 23 Ont. L. Rep. 44, 20 Ann. Cas. 817. Note: L.R.A.1915B 479.

as a "rebuilt" one, constituted a warranty that it had been rebuilt.10 The fact that the article is a second hand one does not itself necessarily prevent an affirmation as to its condition from constituting an express warranty.11 And it has been held that an agreement to overhaul a second hand machine which is the subject matter of sale, and put it in first class shape, is a warranty that the machinery is reasonably certain, when properly handled, to do the work intended which is known to the seller, and is free from structural defects.12 But since the article sold is a second hand one the parties contract naturally on the basis that it is not in a perfect condition and the price is fixed on that basis, and an affirmation by the seller that the article is sound or the like will not ordinarily be deemed a warranty of soundness. 13

445. Sale by Description; General Rule.-In the much discussed and frequently criticised English case of Chandelor v. Lopus (Cro. Jac. 4) where a stone was sold by a jeweler as a "bezoar stone," it was held that this did not constitute a warranty that it was in fact a stone of such a kind.14 And following this principle it was held in an early case in this country that describing the subject of the sale as "brazilletto" wood did not amount to a warranty that the wood was of the kind it was represented to be,15 and the principle of these cases finds support in later cases.16 The principle has not, however. met the approval of the courts in the later cases, even in the jurisdictions in which it was first laid down, and has been materially modified if not entirely overruled,1 and it seems to be generally held that

10. New Hamburg Mfg. Co. v. the plaintiff that a certain stone was Webb, 23 Ont. L. R. 44, 20 Ann. Cas. a bezoar stone, etc., on which asser817. tion the plaintiff bought it, etc.; that the action was originally on a warranty, which failed in fact, as there had been no warranty.

11. Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 A. S. R. 122 (sale of a second hand engine which the seller affirmed had been overhauled and was in good condition).

Note: L.R.A.1915B 479.

12. Fairbanks Steam Shovei Co. v. Holt, 79 Wash. 361, 140 Pac. 394, L.R.A.1915B 477. As to implied warranty of fitness, see infra, par. 459.

13. Weimer v. Clement, 37 Pa. St. 147, 78 Am. Dec. 411 (sale of canal boat sunk in river).

Note: L.R.A.1915B 480.

14. In Derry v. Peek, 14 App. Cas. 337, 58 L. J. Ch. 864, 61 L. T. N. S. 265, 38 W. R. 33, 12 Eng. Rul. Cas. 250, Lord FitzGerald, referring to Chandelor v. Lopus, said that it was an action on the case against a goldsmith skilled in the nature of precious stones, for asserting to and assuring

15. Seixas v. Woods, 2 Caines (N. Y.) 48, 2 Am. Dec. 215, overruled by Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595.

16. Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607; Swett v. Colgate, 20 Johns. (N. Y.) 196, 11 Am. Dec. 266 (goods sold as barilla which in fact was kelp); Welsh v. Carter, 1 Wend. (N. Y.) 185, 19 Am. Dec. 473; Ryan v. Ulmer, 108 Pa. St. 332, 56 Am. Rep. 210.

Note: 35 L.R.A. (N.S.) 261.

17. Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595, overruling Seixas v. Woods, 2 Caines (N. Y.) 48, 2 Am.

where an article is sold by a descriptive name well understood as designating a commodity of a particular kind or character, this is, if relied on by the buyer, a warranty that the article is of the specified. kind or character.18 And this is held true, especially in the more modern cases, where the sale is of goods by a particular description as to quality or condition.19 A warranty of this kind though sometimes spoken of as an implied warranty falls properly within the class known as express warranties.20 In some cases, it is considered that the liability of the seller in case of sale by description is not technically as for a breach of warranty that the article is of the kind for which it is sold, but rather one for failure to perform his contract, thereby reaching the same effect. And it is also stated that when the sale becomes in part executed or consummated, the same facts which before constituted conditions precedent then become warranties. This doctrine of warranty which is sometimes spoken of as the modern

Dec. 215 and Swett v. Colgate, 20 Johns. (N. Y.) 196, 11 Am. Dec. 266. 18. Lyon v. Bertram, 20 How. 150, 15 U. S. (L. ed.) 848; Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 20 A. S. R. 329, 6 L.R.A. 374; Diebold Safe, etc., Co. v. Huston, 55 Kan. 104, 39 Pac. 1035, 28 L.R.A. 53; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 23 A. S. R. 783, 13 L.R.A. 224; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Hastings v. Lovering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 14 A. S. R. 455, 5 L.R.A. 213; Wolcott v. Mount, 38 N. J. L. 490, 20 Am. Rep. 425; Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57 A. S. R. 563; Morse V. Union Stock-Yard Co., 21 Ore. 289, 28 Pac. 2, 14 L.R.A. 157; Borrekins v. Bevan, 3 Rawle (Pa.) 23, 23 Am. Dec. 85 (explained and limited in Carson v. Baillie, 19 Pa. St. 375, 57 Am. Dec. 659); Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L.R.A. (N.S.) 258; Hoffman v. Dixon, 105

Wis. 315, 81 N. W. 491, 76 A. S. R. 916; Jones v. Just, L. R. 3 Q. B. 197, 37 L. J. Q. B. 89, 18 L. T. N. S. 208, 16 W. R. 643, 9 B. & S. 141, 23 Eng. Rul. Cas. 466. See also Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428; Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 A. S. R. 712.

Notes: 2 Am. Dec. 221; 13 Am. Dec. 425; 24 Am. Rep. 112; 102 A. S. R. 614; 11 L.R.A. 681; 35 L.R.A. (N.S.) 258 et seq.

19. Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 20 A. S. R. 329, 6 L.R.A. 374; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 23 A. S. R. 783, 13 L.R.A. 224; Wisconsin Red Pressed-Brick Co. v. Hood, 60 Minn. 401, 62 N. W. 550, 51 A. S. R. 539; Morse v. Union StockYard Co., 21 Ore. 289, 28 Pac. 2, 14 L.R.A. 157; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693; Springfield Shingle Co. v. Edgecomb Mill. Co., 52 Wash. 620, 101 Pac. 233, 35 L.R.A.(N.S.) 258.

Note: 35 L.R.A.(N.S.) 270, 275. 20. Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916.

1. Columbian Iron Works, etc., Co. v. Douglass, 84 Md. 44, 34 Atl. 1118, 57 A. S. R. 362, 33 L.R.A. 103; Morse v. Union Stock-Yard Co., 21 Ore. 289, 28 Pac. 2, 14 L.R.A. 157; Jones v. George, 61 Tex. 345, 48 Am. Rep. 280.

2. Morse v. Union Stock-Yard Co., 21 Ore. 289, 28 Pac. 2, 14 L.R.A. 157.