CHAPTER IV.

CONDITIONS AND WARRANTIES.

§ 39. Condition and warranty distinguished These two terms are often confused. Much of the confusion has been caused by the English cases, in which the term "condition" is often used in the sense of "warranty." The two terms should be carefully distinguished. A condition is a statement or a promise which is of the essence of the contract, a breach of which discharges the contract altogether. In a sale of goods, a tender of the goods agreed upon or of goods of the kind agreed upon, as the case may be, is a condition precedent to any liability of the purchaser for the payment of the price. A warranty, as distinguished from a condition, is a collateral agreement or subsidiary promise, which is not of the essence of the contract, and a breach of which only gives rise to an action for damages, or other appropriate remedy.

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty" (1).

(1) Sales Act, sec. 12.

A breach of warranty does not defeat the completion of the sale. It does not prevent the vesting of the property in the goods in the buyer, nor bar the right of the seller to the price. In Chanter v. Hopkins (2) Lord Abinger said: "A good deal of confusion has arisen from the unfortunate use made of the word 'warranty.' Two things have been confounded together. A warranty is an express or implied statement of something which the parties undertake shall be a part of a contract, and though part of the contract, yet collateral to the express object of it. But in many of the cases the circumstances of a party selling a particular thing by its proper description has been called a warranty, and a breach of such a contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill, as, if a man offer to buy peas of another, and he send him beans, he does not perform his contract, but that is not a warranty. There is no warranty that he should sell him peas. The contract is to sell peas, and if he sells him anything else in their stead, it is a non-compliance with it." Whether a term in the contract amounts to a condition, the non-performance of which amounts to a nonperformance of the contract itself, or is only a warranty, is determined by the intention of the parties, and is proven by the wording of the contract and the circumstances of the particular case.

§ 40. Broken condition may be treated as warranty. A condition may be broken and yet the injured party so (2) 4 M. & W., 399.

far acquiesce as to lose his right to a discharge and have only his action for damages, as for a breach of warranty. In Pope v. Allis (3) there was a sale of a specified amount of iron of a certain grade. When the iron arrived, it was of a different quality from that which the contract required. The purchaser rejected it altogether, and was held entitled to recover the price which he had paid. But, on the other hand, in Wolcott vs. Mount (4) there was a sale of strap-leaf red-top turnip seed to one who was accustomed to raise turnips for the early New York market and make large profits, as the seller knew. The seed proved of another kind and the crop was practically worthless. The seed could not be distinguished except by means of the crop that came up. It was held that as rescission was here impracticable the broken, condition as to the subject matter of the sale virtually became a warranty on which suit could be brought for damages.

The distinction is shown in the language of the Sales Act, as follows: "1. Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first-mentioned party may also treat the non-performance of the condition as a breach of warranty. 2. Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to

(3) 115 U. S., 363.

(4) 7 Vroom (N. J.), 262.

furnish goods as described and as warranted expressly or by implication in the contract to sell, as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods" (5).

§ 41. Scope of conditions or warranties. There can be no warranty where the statement can be only a matter of opinion. In Jendwine v. Slade (6) old pictures were sold under a catalogue, the name of the artist being opposite the picture. It was held that as the artist died more than one hundred years before the sale, the genuineness of the pictures could be only a matter of opinion, and hence there was no warranty. Lord Kenyon said that the catalogue imported "that in the opinion of the seller, the picture is the work of the artist whose name he has affixed to it." In Power v. Barham (7), however, there was a sale of pictures represented to be by Canaletti, an artist who died sixty-four years previous to the sale. The jury in that case found that there was a warranty. The case was submitted to their consideration, upon the whole of the evidence, whether the seller had made a representation as part of his contract that the pictures were genuine, not using the name of Canaletti as matter of description merely or as an expression of opinion upon something as to which both parties were to exercise a judgment, but taking upon himself to represent that the pictures were Canaletti's.

§ 42. Warranties against visible defects. There can be

no warranty where the defects are actually known and understood by the purchaser at the time of the bargain. In McCormick v. Kelly (8) there was a sale of a harvest machine. The purchaser had had the machine on trial and found defects which the seller promised to remedy and to make the harvester as good as any on the market. These facts were held no defense in an action on the note given for the purchase price. The court said: "A general warranty should not be considered as applying to or giving a cause of action for defects known to the parties at the time of making the warranty; and both the weight of authority and reason authorize this proposition, viz.: that for representations in the terms or form of a warranty of personal property no action will lie on account of defects actually known and understood by the purchaser at the time of the bargain." A warranty will not extend to guard against defects that are plain and obvious to the senses of the purchaser, and which require no skill to detect, unless the vendor uses art to conceal, and does conceal, such defects (9). There are often cases where the defect is visible, but its extent can not be ascertained. In Margeston v. Wright (10) a horse sold was warranted sound at the time of the sale. He afterwards became lame from a splint, visible at the time of the sale. The seller was held liable on a warranty. As some splints cause lameness and others do not, the parties must have