The warranty need not be in writing. The decision as to whether a warranty exists or not may be one of law or fact. Where it is a question of fact, as to whether or not the representation is made, then the solution of the question in a law suit, is one for the jury,2 under instructions from the court, but where the facts are not in dispute or the statement is a written one, the question is one for the court.3 SECTION 18. WARRANTY. With every contract of sale is the collateral agreement of warranty, which may be either express or implied, but since the warranty is always auxiliary to the main contract which transfers the title in the goods, whatever defeats the original contract, likewise terminates the contract of warranty. A warranty is to be distinguished from statements or representations which are the basis or inducement of the contract. A false representation may make the contract voidable, a breach or warranty could not affect the validity of the original contract. In other words, a warranty cannot exist without the original contract of which it is annexed, but the existence of the contract is not affected by the warranty. The distinction between representation is well made in the well known old case of Hopkins vs. Tanquery. The defendant had sent a horse to a sale to be sold; before the horse was sold the plaintiff kneeled down and was examining the horse's legs; thereupon the defendant told the plaintiff that it was unnecessary, that the horse was perfectly sound in every way. The plaintiff desisted from further examination and • Thorne vs. McVeagh, 75 Ill., 81. Holmes vs. Tyson, 147 Pa. St., 305, 15 L. Ř. A., 209. Chanter vs. Hopkins, 4 Mees & 130. said he was satisfied, and the following day, on the sale the plaintiff bought the horse, no warranty being made, but the plaintiff, acting on the representation of defendant previously made, bought the horse. The horse proving unsound, the plaintiff instituted this action. It was held that the statement made in reference to the horse's condition did not constitute a warranty, and further that the plaintiff could not recover since it appeared that the defendant acted in good faith. SECTION 19. TIME OF MAKING WARRANTY. Every agreement requires a consideration to support it. Therefore if the warranty is not made at the time of the sale it is not binding, unless it is made upon a new and separate consideration. But a warranty made any time during the period of the negotiations touching the sale, would be considered as made at the time of the sale. A separate consideration would therefore in such a case not be required. But the whole series of transactions must amount to one single contract.8 The time and place, to which the statement of warranty is deemed to apply respecting the subject matter of the sale, must be presumed, under ordinary circumstances to apply to the time and place of making the contract. A written contract of sale contained the following statement of warranty. "Party of the first part hereby guarantees that this wine is in good condition and a merchantable article", and as to the query, as to what time the warranty referred to, the court held that the guaranty had reference to the condition and quality at the date of the agreement, and • Towell vs. Gatewood, 3 Scam. See Way vs. Martin, supra. not to the terms when the warehouse receipts were to be turned over which was to be at a later date, the goods meanwhile remaining in the possession of the vendor.10 It is entirely competent for the parties by apt words to themselves fix the time and place to which the warranty is to be applied," but in their failure to do that, the general presumption governs. SECTION 20. IMPLIED WARRANTIES. 12 Implied warranties are such as are imputed in law upon the whole transaction, as for instance that the seller has title, or that the goods as to bulk, will correspond with the sample, or that the goods are wholesome and merchantable. And it may be said that in every contract, whereby a vendor transfers the title in a thing to another, which the vendor has possession of, the vendor impliedly warrants that the title is good in himself, for the purposes of the sale. It is an accompanying warranty of every sale that the law makes, or implies, from the act of sale by the vendor,12 except in the case where the vendor shows plainly an intention to transfer only such title as is specifically therein stated. It is sometimes said that the vendor impliedly warrants the existence of a thing, and that if the thing does not exist, the price paid may be recovered back. There is no doubt that in such a case the price paid may be recovered back,13 but this is because no title ever passed to the thing supposedly sold, there was a mistake of fact, the contract of sale was thereby avoided. Mistake of fact as to the existence of the thing sold will avoid the contract. The warranty of title carries with it any after acquired right of the ven 14 12 The Electron, 74 Fed. Rep., 689. 18 Marshall vs. Peck, 1 Dana (Ky.), 612. 14 Farrer vs. Nightingal, 2 Esp., 631. dor.15 It seems to be the general doctrine, although we find disapproval for the same, that if the thing is not in the possession of the vendor then he is not chargeable with this implied warranty.16 As to quality of goods, there is not ordinarily, in absence of fraud, a warranty, where the purchaser examines the goods at the time of the sale, or where the opportunity to inspect the goods remains to the purchaser." Nor is there a warranty, as to defects that the purchaser might observe by casual examination of thing sold where the defect is plainly visible, or where nothing is done to keep the purchaser from observing the defect. Where the sale is by sample, the rule is almost universal that an implied warranty exists that the goods shall be up to sample in quality and kind. The rule of caveat emptor could not reasonably be applied because the purchaser has no means of inspecting the bulk from which the sample is taken.18 The vendor of goods also impliedly warrants that goods offered for sale, where the buyer has no opportunity of seeing the goods, that they are merchantable.1o It is now the general rule that where the contract of sale contains express warranties, that an implied waranty in conflict therewith could not exist. Nothing can be implied against the express warranties of the parties. As to the measure of damages in case of a breach of implied warranty, the rule is that it is the difference between the actual value that the goods are shown to have when sold, and what their values would have been, had the warranty been fulfilled.20 15 Curran vs. Burdsall, 20 Fed. Rep., 835. 16 See Story on Sales, 4th Edition, Sec. 367. 17 Carleton vs. Jenks, 80 Fed. Rep., 937; Kellogg Bridge Co. vs. Hamilton, 110 U. S., 108. 18 10 Wall. (U. S.), 388. 10 Doane vs. Dunham, 65 Ill., 512. 20 Wilson vs. King, 83 Ill., 232. SECTION 21. SALE BY DESCRIPTION. In the United States, a sale made of goods by description, where it is an executed contract of sale of goods, will carry with it a warranty that the goods will be as described, either as to kind, quality, name or title." The law does not require the use of formal words in describing the goods so sold, or that the goods be described with great particularity, and with exactness, in order to bind the seller; 22 the description may appear in advertising matter or circulars brought home to the purchaser. There is this limitation, however, on the rule as stated, that the use of mere words of commendation which have no fixed meaning would not thereby make the sale, one by description. So where in the commercial world a particular word or phrase is understood as having a particular limited meaning, the use of such a word or phrase will be confined to the sense in which it is ordinarily understood in the business.23 SECTION 22. SALE BY SAMPLE. The law does not imply a warranty on the sale of ascertained goods, where the buyer has ample opportunity to inspect the thing to be sold, and the seller is neither the manufacturer or producer of the same. This is the application of the common law maxim of caveat emptor.24 In such a case in the absence of fraud on the part of the seller, the buyer purchases at his own risk. An exception to the above rule exists in the case of the sale by sample. That is to say where the seller exhibits a specimen only of the goods to be sold for " Hawkins vs. Pemberton, 51 N. Y., 198, 10 Am. R., 595. 23 Winow vs. Lombard, 18 Pick. (Mass.,) 60. 23 Sweat vs. Shumway, 102 Mass., 365. 24 Parkinson vs. Lee, 2 East, 314. |