2. WARRANTIES. § 151. Passing now from "conditions" to "warranties," it will be helpful to give once more a definition of a warranty. A warranty (or guaranty) is an assurance of protection against harm or loss a qualified contract of indemnity. It is a statement or representation of some fact, and arises either from express agreement or from implication of words, circumstances, or actions. When made at the time of a sale it is subsidiary and collateral to it; but it may be made subsequently to, and entirely independently of, the sale, for it is not an essential part of a sale, although often connected with or appended to one. This definition of a warranty is somewhat longer than the one previously given, but better suited to our present discussion. The important doctrine to be kept in mind. is that a warranty is a representation of some fact, accompanied by a promise to indemnify the vendee, should the result not be as assured. Since a representation may be made with knowledge of its falsity, a warranty made under such circumstances constitutes fraud, and, if made at the time of the sale and relied upon by the vendee, the effect upon the contract of sale would be the same as caused by any other form of fraud. A warranty being a contract, it must, in order to be suable, be founded upon some consideration; and if made in connection with the sale, the consideration for the sale is sufficient to support it. A warranty made after a sale, however, must have an additional consideration, or else it is void. Crossman v. Johnson (Vt.), 13 L. R. A. 678, and see note there; Lunt v. Wrenn, 113 Ill. 175. Warren v. Coal Co., 83 Pa. St. 440. Vincent v. Leland, 100 Mass. 432. Summers v. Vaughn, 35 Ind. 323. Shippen v. Bowen, 122 U. S. 575. § 152. General Principles: Warranties are either express or implied, the former arising from some actual representation or assurance of the seller in connection with the goods sold, the latter being created by law, and inferred from all the circumstances of the sale. Express warranties require no particular form of words, and technical words, as "warrant," "guarantee," etc., are never necessary. The question is, What did the parties do or say? Some authorities hold that there can be no warranty unless the seller intended to warrant, but the true principle is that if the buyer had reasonable ground to rely upon the material statements of the seller, then' such statements are warranties. Mere opinion, or dealer's talk, or praise of one's goods, is not a warranty, but the assertion or representation of some material fact, relied upon by the vendee, is. It is for the court to interpret a warranty, there being no question for the jury when the facts are undisputed. When, however, there is dispute or doubt as to what was said or done, it becomes a question of fact for the jury; and the facts being found, it is for the court to construe the meaning of those facts. This, of course, refers only to oral warranties, for when the warranty is in writing, then its construction is alone for the court. Warranties, however, need not be in writing, unless, if made at the time of the sale, and as a part of it, the contract of sale (for example, a formal bill of sale) is in writing, or unless they are to run for a period prescribed by the jurisdiction's statute of frauds, which is, generally, for a period beyond one year. Kingsley v. Johnson, 49 Conn. 462. Torkelson v. Gorgenson, 28 Minn. 383, 10 N. W. R. 416. Wason v. Rowe, 16 Vt. 525. Ender v. Scott, 11 Ill. 35. Holmes v. Tyson, 147 Pa. St. 305. Hawkins v. Pemberton, 51 N. Y. 198. § 153. In Writing: If, however, as stated in the previous section, the contract is in writing, then the warranty, if any, must be made a part of it, in order to base any action upon it. This requirement comes under the rule of evidence that a written instrument cannot be varied or altered by parol testimony. A warranty made subsequently, however, to the written contract, and supported by an independent consideration, need not be in writing, unless, as said before, it is to remain in force beyond a certain time. McCormick Machine Co. v. Thompson, 46 Minn. 15. Windmill Co. v. Piercy, 41 Kan. 763; 48 id. 263; 55 id. 104. But § 154. Patent Defects: It is said by some text writers and by some courts that an express warranty may cover patent defects. In one case1 the trial court erroneously said, "you sell me a horse, and you warrant him to have four legs, and he has only three. I will take your word for it." The point in all such cases is the word "patent" or "obvious." Patent to whom? There is no doubt that defects may be patent to the seller yet unseen to the buyer, and in such cases, or where the buyer has had no opportunity to examine the goods, or where the buyer, even if he sees the goods, may have no knowledge of the significance of certain indications which to an experienced person would be evidence or proof of defects, an express warranty may cover such 1 McCormick v. Kelly, 28 Minn. 135. |