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the buyer ought simply to receive it as such. He may indeed be influenced by it, but, after all, he should know that it may or may not be true. An opinion is but an opinion; it is a matter resting alone in judgment. It may be based upon facts but it does not purport to state a fact. If I say that a horse is sound I state a fact which may be true or false and this therefore constitutes a warranty if relied upon.
.23 But if I say that a horse is considered sound, or that I believe him to be sound, that is a different matter.24 So if I predict a future event, it is a mere opinion. No one can foretell the future. I may say stocks will rise, oil wells will yield, gold mines will pay, and though I be the best judge on earth of those events, still every one must know that I am only giving my opinion. An express warranty, then, must be the statement of a fact concerning the goods meant to be relied upon, and which is relied upon. It does not matter that the seller speaks as he believes. He takes it upon himself that the fact is true. If he says a stone is a diamond, his contract is that it is a diamond, and the buyer is entitled to rely on his statement. And it is not necessary that the parties use the word "warrant” or similar word.
(b) Express warranty in description. It was said in an early case that if one sells a stone calling it a "bezoar stone," that is no warranty that it is a bezoar stone, but the buyer must beware what he gets. But the law has progressed until now the exact contrary is true and a description by a seller is an express warranty that the goods are as described. Thus a sale of a
23. Hobart v. Young, 63 Vt. 363.
"sound horse" is a warranty that he is sound. It is not necessary that the word warranty be used. The use of any words in which an affirmation of fact is contained is a warranty.26
(c) Buyer's reliance on warranty. The buyer must rely upon the affirmation in order to constitute it a warranty. For this reason a general affirmation is considered not to cover a known defect.
Example 7. A warrants a horse to be sound. B, the buyer knows him to have a blind eye. The warranty does not extend to this defect. 26
But a buyer need not search for defects, if the seller is willing to expressly warrant against them. So if there is a doubt in the mind of the buyer, the seller may cover it by warranty.
Sec. 43. WHETHER ALLEGED ORAL WARRANTIES PROVABLE IF CONTRACT IN WRITING. If a contract sell or a sale is completely reduced to writing alleged oral warranties cannot be introduced for the purpose of changing or adding to the contract as it appears in the writing.
If the contract of sale has been reduced to writing complete upon its face, statements made orally cannot be regarded as constituting warranties and therefore will not be received in evidence, for it is to be considered that the parties meant the writing to be the expression and evidence of their act.27 But if the writing shows on its face that it was but an incomplete memorandum and was not regarded by the parties as expressing the entire act, then such oral warranties as were really a part of the contract could be proved as though the entire transaction had been oral, unless the statute of frauds was applicable to the particular case (there being no part delivery or payment).
26. McCormick v. Kelly, 28 Minn. 135.
Of course this reasoning has no application to implied warranties which exist regardless of the form of contract, except that if the writing covers the point, there .cannot be an implied warranty upon the same point.
B. Implied Warranties.
Sec. 44. DOCTRINE OF CAVEAT EMPTOR. Where there is a sale of specific articles which may be inspected by the buyer, and there is no fraud on the part of the seller, and the seller is neither manufacturer or dealer, there is no implied warranty. The buyer must "beware.”
The simplest case of sale is that of a specific article before the parties at the time of the bargain which the buyer may inspect. In such a case the doctrine is "caveat emptor" ("let the buyer beware").28
Example 8. A has a horse to sell which he offers to B. The horse is present before the parties, or is where the buyer may inspect him. B buys. Whether B inspects the horse or not, there is no implied warranty of the soundness of the horse, as to any fact discoverable or not by such inspection. If the horse has a hidden disease, A is not blameworthy and cannot be sued. (If the hidden
27. Seitz v. Brewer's Refng. Co., 141 U. S. 510. See also, generally, the Volume on Contracts in this series.
28. Jones v. Just, L. R. 3 Q. B. 197.
disease were known to A, and could not be discovered on reasonable inspection the duty would be on A to disclose it. See Contracts, title “Fraud.")
If the seller is a manufacturer, or even a dealer (though all authorities are not agreed on this) and it is apparent that the buyer relies on the seller's superior knowledge or judgment there is an implied warranty that the article is merchantable.29
Sec. 45. GENERALLY OF THE IMPLIED WARRANTIES. Under the law of sales, warranties of an implied nature arise, from different classes of fact, unless negatived by the agreement of the parties.
Under the law of sales as it has developed from the decision of cases, and now, by statute, under the Uniform Sales Act, sales of personal property carry affirmations of fact of an implied nature arising out of different classes of facts. That is to say, when one sells personal property, he thereby by that very act, makes representations in respect to such property upon which the buyer can rely, and for the breach of which he may refuse the goods or sue for damages. The seller may of course negative the fact of the warranty by providing against it; or may replace it by an express warranty covering the same point. The various implied warranties are discussed severally in following sections.
Sec. 46. IMPLIED WARRANTIES IN EXPRESS SALES. Warranties of an implied nature attach to express contracts, whether oral or in writing, unless stipulated
29. Williston on Sales, Sec. 233.
against, or unless the same point is covered by an express warranty.
As few contracts are implied, except in part, the law of implied warranties would have comparatively small importance if implied warranties arose only in the case of implied contracts. If a contract is totally in writing, so that any attempt to incorporate anything further therein by way of extrinsic agreement would violate the parol evidence rule, nevertheless the contract will carry with it the proper warranties by implication, unless they have been stipulated against, or unless there is an express warranty on the same point.
The expression is frequently met with in the cases that an express warranty will prevent an implied warranty; but this is a loose statement. An express warranty will not prevent a warranty from being implied except upon the same point. This is provided in the sales act under this language:
"An express warranty or condition does not negative a warranty or condition implied under this act, unless inconsistent therewith.” 30
Sec. 47. THE IMPLIED WARRANTIES OF TITLE. In every sale or contract to sell there are the implied warranties of title that the seller has, or will have when the title is to pass, an unencumbered ownership in the goods or right to sell them.
It will be seen hereafter, that under certain conditions a buyer of personal property may ignore the true state of the title, and take a better title than his vendor had. But that is not the rule (in case of negotiable paper it is the
30. Uniform Sales Act, Sec. 15 (6).