case on a warranty was in part the foundation of the action of assumpsit. An action on a warranty was regarded for centuries as an action of deceit, and it was not until 1778 that the first reported decision occurs of an action in assumpsit on a warranty.94 And it is still possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort.95 It is probable that to-day most persons instinctively think of a warranty as necessarily a contract or promise, but though frequently warranties are true promises and contracts, in other cases they are merely representations which induce a sale, and if it is said that a promise or contract is implied from such representation, the implication is one of law and not of fact.96 It may be added that the whole law of implied warranty both of title and of quality is based on implied representations rather than on promises.

§ 971. Intent to warrant.

It is often said that an intent on the part of the seller to warrant is an essential element of the obligation. Undoubtedly in order to make out a true contract of warranty, it is essential that the apparent intention of the seller shall have been to promise in consideration of the buyer's purchase; but if the contention in the previous section is sound that warranty may be based on representation as well as on true contract, it follows that not even apparent intent to contract is essential, and much authority supports this conclusion.97 It is of vital importance, however, that the seller should affirm as matter of fact, and not as matter of opinion, his statement

"Stuart v. Wilkins, 1 Doug. 18.

95 Shippen v. Bowen, 122 U. S. 575, 7 Sup. Ct. 1283, 30 L. Ed. 1172; Farrell v. Manhattan Market Co., 198 Mass. 271, 15 L. R. A. (N. S.) 884, 84 N. E. 481, Williston, Sales, $197.

Williston, Sales, § 197. See infra, § 1503, 1504. See, however, Heilbut v. Buckleton, [1913] A. C. 30. A criticism of this decision may be found in 27 Harv. L. Rev. 1. It is followed

in Harrison v. Knowles, [1918] 2 K. B. 608.

97 Kenner v. Harding, 85 Ill. 264, 28 Am. Rep. 615; Stroud v. Pierce, 6 Allen, 413, 416; Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Ingraham v. Union R. Co., 19 R. I. 356, 33 Atl. 875; Hobart v. Young, 63 Vt. 363, 369, 21 Atl. 612, 12 L. R. A. 693. See further, Williston on Sales, §§ 198, 199.

in order to render him liable as a warrantor.98 The tendency of modern cases is towards holding positive statements of quality affirmations of fact." The question has been somewhat confused by inexact terminology. The words warranty and representation recur in the discussions, and differences of opinion have been increased by the manifold meanings attached to the word warranty. That a representation is the antithesis of warranty, as that word is used in the language of insurance and of charter-parties, is certain. It is natural that it should be hastily assumed that the same antithesis is used when warranty is spoken of in the law of sales; and this assumption is made in some of the decisions, but generally it is made clear if a representation is spoken of as distinguished from a warranty, that what is meant by representation is an expression of opinion as distinguished from an assertion of fact.

§ 972. Reliance of the buyer-obvious defects.

It is essential that the buyer should rely on the seller's statement, whether in the particular case the warranty sounds in contract or in tort. If in contract, the offer must be accepted; if in tort, the deceitful statement must be acted on. The difficulties which arise in regard to questions of reliance relate to several special cases which may be classified under four headings, as follows: 1, Obvious or known defects; 2, inspection; 3, statements made previously to the bargain; 4, statements made subsequently to the bargain. In regard to obvious defects, two conceptions exist which are not always kept separate. In the first place, a warranty in general terms is held not to cover defects which the buyer must have observed. This is a rule of a construction, and is based on an

98 See the analogous question regarding fraudulent statements, infra, §§ 1491. et seq.

99 See Williston, Sales, §§ 203, 204. 1 See supra, § 673.

2 Thompson v. Harvey, 86 Ala. 519, 5 So. 825; Huston v. Plato, 3 Colo. 402; Marshall v. Drawhorn, 27 Ga. 275; Ragsdale v. Shipp, 108 Ga. 817, 34 S. E. 167; O. H. Jewell Filter Co.

v. Kirk, 102 Ill. App. 246, affd., 200 Ill. 382, 65 N. E. 698; Connersville v. Wadleigh, 7 Blackf. 102, 41 Am. Dec. 214; Dean v. Morey, 33 Iowa, 120; Storrs v. Emerson, 72 Iowa, 390, 34 N. W. 176; Scott v. Geiser Mfg. Co., 70 Kans. 500, 80 Pac. 955; Richardson #. Johnson, 1 La. Ann. 389; Brown e. Bigelow, 10 Allen, 242; McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675;

endeavor by the court to give effect to the intention of the parties.

In the second place, there are statements, especially in the earlier authorities, which seem to go so far as to say that it is impossible to warrant against an obvious defect, however clearly a seller may have expressed an intention to do so. As to this, there seems no reason if the seller contracts in regard to an obvious defect or if he makes representations upon which the buyer in fact relies, why he should escape liability. It can hardly lie in his mouth to say that though he was making false representations or promises to induce the buyer to make the bargain, and the buyer was thereby induced, he should not have been. Certainly there is a growing tendency in the law not to allow that sort of argument."

§ 973. Inspection.

Inspection may conceivably have a threefold importance in connection with the buyer's reliance on the seller's state

Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254; Branson v. Turner, 77 Mo. 489; Doyle v. Parish, 110 Mo. App. 470, 85 S. W. 646; Hanson v. Edgerly, 29 N. H. 343; Leavitt v. Fletcher, 60 N. H. 182; Schuyler v. Russ, 2 Caines, 202; Jennings v. Chenango County Ins. Co., 2 Denio, 78; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719; Parks v. Morris Ax & Tool Co., 54 N. Y. 586; Bennett v. Buchan, 76 N. Y. 386; Van Schoick v. Niagara Ins. Co., 68 N. Y. 434; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702; Mulvany v. Rosenberger, 18 Pa. St. 203; Fisher v. Pollard, 2 Head, 314, 75 Am. Dec. 740; Long v. Hicks, 2 Humph. 305; Williams v. Ingram, 21 Tex. 300; McAfee v. Meadows, 32 Tex. Civ. App. 105, 75 S. W. 813; Hill v. North, 34 Vt. 604.

In Norris v. Parker, 15 Tex. Civ. App. 117, 38 S. W. 259, the court said: "There seems to be no good reason why a warranty may not cover obvious defects as well as others, if the vendor is willing to give it, and

the buyer is willing to buy defective property on the assurance of the warranty. If he relies on his own judgment alone, he does not rely on his warranty." "A special warranty on the sale of a horse may be made to cover blemishes or defects which are open and visible, if the intention to do so is clearly manifested," is the language of the Supreme Court of Minnesota in the case of Fitzgerald v. Evans, 49 Minn. 541, 52 N. W. 143. In Watson v. Roode, 30 Neb. 264, 271, 46 N. W. 491, it is said: "The seller may bind himself against patent defects, if the warranty is so worded." To similar effect are Turner v. Manley, 14 Ga. App. 215, 80 S. E. 680; Steele v. Andrews, 144 Ia. 360, 121 N. W. 17; Powell v. Chittick, 89 Iowa, 513, 56 N. W. 652; Williams v. Ingram, 21 Tex. 300; Henderson v. Railroad Co., 17 Tex. 560, 67 Am. Dec. 675; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693. See also Branson v. Turner, 77 Mo. 489; June v. Falkinburg, 89 Mo. App. 563.

ments. In the first place, if the defect was one which could be discovered by inspection and the buyer inspected the goods, it may be urged that the parties did not intend that the language used should cover this defect. This reasoning is analogous to that adopted in regard to obvious defects. An obvious defect, however, means a defect that is apparent upon casual inspection and does not need careful or expert examination for its discovery. If the defect required examination of the latter sort, it is still more plain than in the cases of obvious defects that a seller who clearly promises or affirms that the goods are free from the defect which in fact vitiates them will be liable. A second aspect in which inspection or rather the right to inspect may have a bearing on the seller's liability, exists where the buyer has full power and opportunity to inspect, and inspection, if made, would have disclosed the defective character of the goods, but the buyer fails to make the inspection. These facts it may be urged should preclude liability on the seller's part, but whatever may be the law in regard to implied warranty 5 in the case of express warranty, either by contract or representation, it is no defense that the buyer, had he inspected, might have found out the falsity of the seller's statements. The buyer is justified in taking the seller at his word, and in relying upon the seller's statements rather than upon his own examination. A third pos

4 W. T. Adams Mach. Co. v. Turner, 162 Ala. 351, 50 So. 308, 136 Am. St. Rep. 28.

See infra, § 988. Courts sometimes do not observe the distinction between express and implied warranty in this respect. See, e. g., Egbert v. Hanford Produce Co., 92 N. Y. App. Div. 252, 86 N. Y. S. 1118.

Thompson v. Bertrand, 23 Ark. 730. The seller of a slave gave a warranty of soundness. The buyer might have discovered the unsoundness of the slave's feet and knee by examination. The seller was held liable upon the warranty. Leitch v. Gillette-Herzog Mfg. Co., 64 Minn. 434, 67 N. W. 352. The seller of 500 iron bedsteads stated that if the parts

of one of the beds went together properly the parts of all would do so. The buyer having found that one could be put together properly made no further inspection. It was held that the plaintiff was entitled to recover, though had he set up more of the bedsteads he would have discovered that the parts would not go together properly. See also Jones v. Just, L. R. 3 Q. B. 197, 204; First Bank v. Grindstaff, 45 Ind. 158; Vaupel v. Lamply, 181 Ind. 8, 103 N. E. 796; Meickley v. Parsons, 66 Iowa, 63, 23 N. W. 265, 55 Am. Rep. 261; Cook v. Gray, 2 Bush, 121; Gould v. Stein, 149 Mass. 570, 577, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Woods v. Thompson, 114 Mo. App.

sible importance of inspection by the buyer is in excluding reliance by the buyer on any statement of the seller in regard to the goods. It was held in a New York decision that such was the effect of inspection." But this decision misinterprets the requirement of reliance. There is no reason in the nature of things why a buyer should not rely both on the seller's statements and on his own judgment. Observation shows that buyers constantly do this, and accordingly it is generally and rightly held that inspection by the buyer does not excuse the seller from liability for words which amount to an express warranty, if the difference between the goods and the description was not detected.6€

§ 974. Statements before or after the bargain.

If a warranty be conceived of exclusively as an express contract, it is obvious that an offer of the warrantor accepted by the buyer is essential. If a statement made by the seller precedes the sale by a long period and especially if the statement was not made as part of the negotiations culminating in the sale, it will be difficult to find such an offer and accept

38; Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122; Barnum Wire Works v. Seley, 34 Tex. Civ. App. 47, 77 S. W. 827; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890.

61 Crocker-Wheeler Electric Co. v. Johns-Pratt Co., 29 N. Y. App. Div. 300, affd., without opinion, 164 N. Y. 593, 58 N. E. 1086. The seller of material called "vulcabeston" represented that it was made of the best, para rubber and selected asbestos, and that it was practically a perfect insulating material. Specimens were furnished the buyer who experimented with them. The court said, as to the seller's statements: "They were not relied upon by the plaintiff or its predecessor; for, before making any contract, the officers of the plaintiff or its predecessor satisfied themselves, by their own investigation or experiment, that the representations made

respecting the material and its sufficiency for their purposes were true. It is elementary that, in order to entitle the plaintiff to maintain an action for breach of an express warranty, it must be established that the warranty was relied on. Such was not the case here." See also Redfield v. Engel, 171 Mich. 207, 137 N. W. 60.

ob Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; Hitz v. Warner, 47 Ind. App. 612, 93 N. E. 1005; South Bend Co. v. Caldwell, 21 Ky. L. Rep. 1084, 1363, 55 S. W. 208; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485; Keely v. Turbeville, 11 Lea, 339; Woods v. Thompson, 114 Mo. App. 38.

ac Procter v. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281.