the language used at its termination; but if the contract be in the end reduced to writing, nothing which is not found in the writing can be considered as a part of the contract (n). A Warranty may be gathered from Letters which have Warranty passed between the parties. But where it is sought to may be import a Warranty into a contract for sale contained in Letters. gathered from Letters, which are ambiguous in their terms, it is competent to the party sought to be charged to give evidence of all the surrounding facts and circumstances, for the purpose of showing that a Warranty was not contemplated by the parties (o). it alone. The Parties are bound by the Written Warranty alone, The Parties unless some Fraud can be shown; and even if there be a are bound by Representation it does not avail. If a man brings me a Horse, and makes any Representation whatever of his quality and soundness, and afterwards we agree in writing for the purchase of the Horse, that shortens and corrects the Representation; and whatever terms are not contained in the contract do not bind the seller, and must be struck out of the case (p). Upon a contract for the sale of goods with a particular It cannot be express Warranty, the Court will not extend such War- extended by implication. ranty by implication, as the Maxim, Expressum facit cessare tacitum, applies to such case (q). Thus, if a man sell a Horse, and warrant him to be sound, the vendor knowing at the time that the purchaser wants him for the purpose of carrying a lady, and the Horse, though sound, proves to be unfit for that particular purpose, this would be no breach of Warranty (q). When several Horses are sold at an entire price, and a A Warranty Warranty is given as to all, the contract of sale is entire, is several but the Warranty is several (r). though the contract be Time of Sale. A Warranty only extends to the state of a particular entire. commodity at the time of sale, unless the Warrantor ex- A Warranty pressly fixes some future period to which he undertakes applies to the to extend it (s). Thus Blackstone says, "A Warranty can only reach to things in being at the time of the Warranty, and not to things in future; as that a Horse is sound at the time of buying him, not that he will be (n) Per Abbott, C. J., Kain v. Old, 2 B. & C. 627. (0) Stucley v. Bailey, 31 L. J., Ex. 483. (p) Per Gibbs, J., Pickering v. Dacson, 4 Taunt. 785. (a) Dickson v. Zizinia, 10 C. B. 602; see also Anthony v. Halstead, 37 L. T., N. S. 433. (r) See Story on Sales, 191; Symonds v. Carr, 1 Camp. 361. (s) Eden v. Parkinson, Doug.732 a. sound two years hence (t). And in a case in the Year Book in the reign of Edward the Fourth, Choke, J., says, "If I sell a Horse and warrant him to travel thirty leagues a day, and he fail to do it, I am not liable to an action of Deceit, for the Warranty is void, because a person only warrants such a thing as was at the time of Warranty, and not a thing which is to come" (u). Warranting a There is no doubt, however, that a Future Event may future Event. be warranted if there be an express undertaking to that effect (x); and it makes no difference whether the Warranty be made at the time of sale or before sale, so long as the sale is made upon the faith of the Warranty (y). For where a seller informed a buyer that one of two Horses he was about to sell him had a Cold, but agreed to deliver both at the end of a fortnight sound and free from blemishes, and at the expiration of that time both Horses were delivered, but one had a Cough and the other a Swelled Leg, which was apparent at the time of sale, the seller brought an action to recover the price, and a verdict was found for the buyer. The Court of Common Pleas refused to disturb it or grant a new trial, as the Warranty did not apply to the time of sale but to a future period (≈). Buying for a particular Тигрове. Must be reasonably fit for the purpose. On the sale of goods, if the parties agree to the specific chattels, there is no implied Warranty on the part of the seller that the goods shall be fit for the Particular purpose (a) for which they are required, but only that they must be merchantable, that is to say, fit for some purpose (b). If a person sell a commodity for a Particular purpose he must be understood to warrant it reasonably fit and proper for such purpose (c). If a man sells a Horse generally, he warrants no more than that it is a Horse; the buyer puts no question, and perhaps gets the animal cheaper. But if he asks for a Horse to carry a lady, or a child, or to drive in a particular carriage, he who knows the qualities of the animal and sells, undertakes on every principle of honesty that it is fit for the purpose indicated; but if it should turn out that the Horse was vicious, or (t) 3 Bla. Com. 165. (u) Year Book, 9 Edw. 4, p. 6. (a) Per Parke, B., Sutton v. Temple, 12 M. & W. 55. (b) Per Best, C. J., Jones v. Bright, 5 Bing. 544. (c) Per Abbott, C. J., Gray v. Cox, 4 B. & C. 115. had never been in harness, the buyer would be entitled to recover, on proving that the Horse was unfit for the purpose for which it was sold, although it might be fit for several other purposes. The selling upon demand for a Horse with particular qualities, is an affirmation that he possesses those qualities (c). Horse. And in Chanter v. Hopkins (d), Mr. Baron Parke said, A Carriage "Suppose a party offered to sell me a Horse of such a description as would suit my carriage, he could not fix on me a liability to pay for it, unless it were a Horse fit for the purpose it was wanted for; but if I describe it as a particular bay Horse, in that case the contract is performed by his sending that Horse" (e). defects. Nor is there any exception as to latent undiscoverable Latent undisdefects. In Randall v. Newson (f), the plaintiff ordered coverable and bought of the defendant, a coach-builder, a pole for his carriage. The pole broke in use, and the Horses became frightened and were injured. In an action for the damage, the Jury found that the pole was not reasonably fit for the carriage, but that the defendant had been guilty of no negligence. On motion by the defendant for judgment, the Court (g) ordered judgment to be entered for the defendant, on the ground that the answers of the Jury amounted to a finding of a latent defect in the wood of the pole, which no care or skill could discover, and that the principle of the decision in Readhead v. Midland Rail. Co. (h) extended to the sale of an article for a specific purpose. The plaintiff appealed. And the Court of Appeal held that the limitation as to latent defects, introduced by Readhead v. Midland Rail. Co. (i), does not apply to the sale of a chattel, and that the plaintiff was entitled to recover the value of the pole, and also for damage to the Horses, if the Jury on a second trial should be of opinion that the injury to the Horses was the natural consequence of the defect in the pole. Proof that a Horse is a good drawer only will not Quiet in (c) Per Best, C. J., Jones v. Bright, 5 Bing. 544; S. C. 3 M. & P. 162; see also Jones v. Just, L. R., 3 Q. B. 197; 37 L. J., Q. B. 89; 18 L. T., N. S. 208. (d) 4 M. & W. 406. (e) Chanter v. Hopkins, 4 M. & W. 406. See also Chalmers v. Harding, 17 L. T., N. S. 571. (f) L. R., 2 Q. B. D. 102; 46 L. J., Q. B. 259; 36 L. T., N. S. 164. (g) Blackburn and Lush, JJ. (i) L. R., 4 Q. B. 379. This Harness. Unfitness must be clearly proved. General rule. satisfy a Warranty that he is "a good drawer and pulls quietly in harness." And the Court of King's Bench held that it was quite clear these were convertible terms, because no Horse can be said to be a good drawer if he will not pull quietly in harness, and therefore proof that he is merely a good puller will not satisfy the Warranty; the word good must mean "good" in all particulars (k). And where a Horse was warranted "sound and quiet in all respects," Lord Abinger, C. B., held it to include the being quiet in harness (7). But where the Warranty was as follows, viz., "Received from A. the sum of 607. for a black Horse rising five years, quiet to ride and drive, and warranted sound up to this date, or subject to the examination of a veterinary surgeon;" it was held that there was no Warranty that the Horse was quiet to ride and drive (m). But in setting up a Breach of such a Warranty, it must be clearly proved that the Horse at the time of sale was unfit for the purpose for which he was bought; and if he has gone quietly with persons of ordinary skill, there will be a strong presumption that he answers his Warranty. In the following case it appeared that a Horse warranted "a thoroughbroke Horse for a Gig,' kicked and broke the Gig, &c. the first time he was driven by the purchaser. This was, however, two months after sale, but in the meantime other persons had driven him, and he had always answered his Warranty. It was decided that this was no breach, because as the Horse had previously behaved as he had been warranted, his bad conduct must be attributed and have been owing to the purchaser's want of skill in driving (n). And in the case of Buckingham v. Reeve, Pollock, C. B., said, "A Horse put into a new harness and an unaccustomed carriage once or twice might kick, and yet be deserving of a Warranty of being quiet in harness" (o). The general rule, then, is this:-Where the purchase is of a defined and well-known article, the vendor performs his part of the contract by sending that article, and it is the vendee's concern, whether it answers the purpose for which he wanted to use it or not. And if a man purchase goods of a tradesman, without in any way relying upon the skill and judgment of the vendor, the vendor is not responsible for their turning out contrary to his expectation. But if the tradesman is informed at the time that the order is given of the purpose for which the article is wanted, and the buyer relies upon the seller's judgment, the seller impliedly warrants that the thing furnished shall be reasonably fit and proper for the purpose for which it is required (p); and it seems that the liability of the vendor in this latter case is the same, whether he be also the manufacturer of the article or not, and whether the vendee has or has not had an opportunity of inspecting the goods purchased; provided the defect be one which cannot be discovered on inspection, but only on trial (p). In all cases of Warranty as to the quality of the thing Warrantor's sold, as, for instance, where a Horse is warranted sound or liability. the like, the Warrantor undertakes that it is true at the time of making it; and the law annexes a tacit contract that if it be otherwise than warranted, the vendor shall make compensation to the buyer (q); and the seller will be liable for any latent defect, according to the old law concerning Warranties (r), that is, as Lord Mansfield laid down, for all faults, known or unknown to the seller (s), inconsistent with the Warranty given. But where a Horse is sold with a Warranty, any Fraud Sale avoided at the time of sale will avoid the sale, though it is not on by Fraud. any point included in the Warranty (t). A sale, however, is not avoided by some immaterial Representation in the Warranty proving untrue. For Lord Eldon, in delivering Judgment in the case of an appeal to the House of Lords, held, where a Horse was sold under a Warranty of Soundness, but with a misrepresentation as to the place from which he was brought, "that if the Warranty was answered, a misrepresentation as to the place from which the Horse was procured would not suffice to set aside the sale" (u). SALE AND WARRANTY BY AN AGENT. An Agent is always incompetent, without special autho- An Agent rity for that purpose, to appoint another person to act in cannot dele (p) Chit. on Contr., 11th ed. 417; Bigge v. Parkinson, 31 L. J., Ex. 301, 303; Mallan v. Radloff, 5 N. R. 54. (9) Archbold's N. P. 40; Fielder v. Starkin, 1 H. Bla. 17. 23. (r) Parkinson v. Lee, 2 East, 321. (u) Geddes v. Pennington, 5 Dow, 163. gate his Authority. |