"It is not true as sometimes stated tha. the representation in order to constitute a warranty must have been intended by the vendor as well as understood by the vendee as a warranty. If the contract be in writing and it contains a clear warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares; and so if it be by parol and the representation as to the character or quality of the article sold be positive, not mere matter of opinion or judgment and the vendee understands it as a warranty and he relies upon it, and is induced by it, the vendor is bound by the warranty, no matter whether he intended it to be a warranty or not. He is responsible for the language he uses and can not escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee.

"I therefore reach the conclusion, both upon principle and authority, that upon the facts of this case the jury might properly have inferred that there was, upon the sale, a warranty that the article sold was blue vitriol. It was, at least, the duty of the court to have submitted the question of warranty to the jury. I think the facts were so clear and undisputed, that the court could, without error, have decided as a question of law, that there was a warranty, but this it is unnecessary to decide upon this appeal. "The only remaining question to be considered is whether there was a breach of this warranty, and this can need but little discussion. The article sold, if it was known at all in market, was known by another name. It had only from seventeen to twenty-five per cent of blue vitriol in it, but a different substance with a small admixture of blue vitriol."

We have seen that a warranty is an assurance of some fact coupled with an agreement, express or implied, to make the assurance good, or pay for the deficiency.17 Strictly speaking, the warranty is no part of the contract of sale; it is a collateral contract,18 and as such requires a consideration. When made at the time of the sale, or as an inducement to the sale, the consideration of the sale is a good consideration of the warranty;19 but if made after the sale 17 Afflick v. Streeter, 125 Mo. App. 703, 103 S. W. 112.

18 Morris v. Bradley, 64 Fed. Rep. 55.

19 McGaughey v. Richardson, 148 Mass. 608, 20 N. E. 202.

the warranty needs a new consideration.20 This is a point often overlooked by the parties.

Word"Warrant" Need Not Be Used. It is not necessary in order to constitute a warranty in a contract of sale to use the word "warrant". Any synonym, or expression, or word equivalent thereto is sufficient.

"In the various cases which have been cited, it appears, abundantly, that when the action is founded on a warranty of the soundness of a chattel sold, a warranty must be proved; but it nowhere appears that it is necessary that the vendor should use the express words, that he warranted the soundness. If a man should say, on the sale of a horse, 'I promise you the horse is sound,' it is difficult to conceive that this is not a warranty, and an express one, too. In every action on a warranty it must be shown that there was an express or direct affirmation of the quality and condition of the thing sold, as contradistinguished from opinion, etc., and when that is made out, it would be an anomaly to require that the word 'warrant' should be used. Any words of equivalent import, showing the intention of the parties, that there should be a warranty, will suffice." 21

Mere words of praise, commendation, puffing up of one's wares, will not constitute a warranty. But any positive affirmation of a material fact, as a fact, intended by the vendor as and for a warranty, and properly relied upon by the buyer as such, is sufficient. An expression of opinion, however, will not constitute a warranty. A warranty may be connected with an executed contract of sale or with an executory contract of sale.

CLASSES OF WARRANTIES

Warranties are of two classes, viz, express warranties and implied warranties. Implied warranties may be regarded as conditions of the sale, and, as they arise at the time of the sale, require no separate consideration apart from the consideration of the contract. An express warranty, on the other hand, may be made before or after the 20 Hansen v. Gaar, 63 Minn. 94, 65 N. W. 254. 21 Chapman v. Murch, 19 Johns. (N. Y.) 290.

sale, as well as at the time of the sale; if after the sale, it requires a new consideration; if made at the time of or during the negotiations of the sale, the consideration of the contract of sale will support it. There may be both an express warranty and an implied warranty in a contract, as for instance of soundness and of title.22

The Sales Act defines an express warranty as "Any affirmation of fact or any promise by the seller relating to the goods 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. But no affirmation of the value of the goods, nor statement or opinion, constitutes a warranty." 23

The Sales Act also provides for implied warranties in the case of title that the seller warrants his title, and that the vendee shall enjoy it in peaceful possession, and that it is free from incumbrance.

In the case of goods sold by description or sample, there is an implied warranty that the goods shall correspond with the description or the sample, and with both if there is a description as well as a sample.

In the case of quality the Act provides an implied warranty of reasonable fitness of goods when their purpose has been made known by the buyer to the seller at the time of the sale; also that goods bought by description from a seller, who is a dealer or manufacturer of the goods, shall be of merchantable quality. But the warranty does not extend to defects which a buyer who has examined the goods might have discovered upon examination.24

§ 66. Express Warranties. Forms and Effects. An express warranty may be either oral or in writing.25 It may be special, relating to a particular fact, or general, covering the entire condition of the article. A general warranty is sometimes held not to apply to obvious defects. A

22 Blackmore v. Fairbanks, Morse & Co., 79 Ia. 282.

23 Uniform Sales Act, § 12.

24 Idem, §§ 13-16.

25 Conkling v. Standard Oil Co., 138 Ia. 596, 116 N. W. 822.

temporary and curable injury existing at the time of the sale of a horse is not a breach of warranty of soundness, but a horse may be unsound at the time of sale if then he has the seeds of some disease, as glanders, though it may take a long time for the disease to develop.

In sales of horses this question of representation of fact, or mere expression of opinion, has been much litigated. The test generally employed is whether the statement can be regarded as an inducement to the making of the sale. If it can be, then it amounts to a warranty.2

26

Statements of value are held to be expressions of opinion, and a seller may warrant the correctness of his opinion and thereby make himself liable as for an express warranty. It is not essential, as has been said, to use the word "warrant", and even the use of the word "warrant" alone may not amount to a warranty.

Where a term is merely descriptive, as the word "thoroughbred" applied to cattle, it does not constitute a warranty.27 However, where goods are sold by description, the description amounts to a warranty that the goods will correspond thereto.28

A warranty of soundness does not cover defects which are obvious to the buyer.29 So if the seller of a blind horse, known to both parties to be blind, warrants this soundness, the defect is not covered by the warranty of soundness. Nor would it cover any other defect which the buyer already knew of.30 If the seller conceals defects and yet warrants the goods he is liable on his warranty.31 And even known defects may be covered by warranty of the vendor, as where a seller of an animal represents a defect to be less serious than he knew it to be.32

26 Cobart v. Young, 63 Vermont 363, 21 Atl. 612, 12 L. R. A. 693; Altman v. Weber, 28 Ill. App. 91; Iroquois Furnace Company v. Wilson Manufacturing, 181 Пl. 582, 54 N. E. 987.

27 Shambaugh v. Currant, 111 Ia. 121.

28 Foss v. Sabin, 84 Ill. 564; White v. Miller 71 N. Y. 118, 27 Am. Rep. 13. 29 Jewel Filter Co. v. Kirk, 200 Ill. 384.

30 Harwood v. Breese, 73 Nebr. 521, 103 N. W. 55.

31 Brown v. Weldon, 99 Mo. 564, 13 S. W. 342. 32 Watson v. Roode, 43 Nebr. 348, 61 N. W. 625.

A warranty may have reference to a future condition of things, as where one warrants that a machine will run and do work a certain length of time, or that it will accomplish certain results, as in the case of a furnaces or refrigerating machinery.3

34

Time Limit. Sales are sometimes made upon a warranty limiting the time within which advantage may be taken of the warranty. In an old English case,35 the warranty read in this way: "Warranty of soundness, when given at this repository, will remain in force until twelve o'clock at noon on the day next after the sale, when it will become complete, and the responsibility of the seller will terminate, unless in the meantime a notice to the contrary be delivered." A horse was purchased of the defendant and it proved to have a disease of the hoof which at the time of the purchase was not apparent, due partly to the dark condition of the stable. The plaintiff failed to give notice of the defect before the time set in the warranty and it was held that he had no ground of action against the defendant on the warranty.

American courts generally hold that a limited warranty does not cover latent defects, where the latent defects do not manifest themselves until after the expiration of the period of warranty. In Main Co. v. Fields,36 the plaintiff bought certain jewelry of the plaintiff on a written contract, which provided that any claim that the jewelry was not like the sample would be waived unless made within two days after the receipt of the goods. The court said:

"It is true that the contract contains a provision that all rights to make claim that goods are not like sample, or not according to order, are waived unless such claim is sent by registered mail within two days of receipt of goods; and it is likewise true that there is no evidence that the defendants made claim within two days after receipt of the goods. The courts have very generally recognized the 33 White v. Steloh, 74 Wis. 435, 43 N. W. 99.

34 Underwood v. Wolf, 131 Ill. 425.

35 Water v. Richardson, 1 Ad. & El, 508.

36 144 N. C. 307, 56 S. E. Rep. 943.