Story Case

Mr. Mauriss Cohen desired to purchase a building lot in the business district of the City of Chicago. After some negotiations with Mark and Company, real estate agents, he decided upon a lot near State Street on Twelfth Street, upon which stood an old building. Cohen paid five dollars a square foot for the lot. When dealing with Mr. Cohen, the agent of Mark and Company knew that Mr. Cohen intended to erect a twentystory building, and repeatedly stated that the lot had an excellent bottom, that it was probably but fifteen feet to rock base. Several statements of like nature were made. When excavation began, it was found that there was no rock base for the lot, only a clay of poor resistance to pressure. As a result, the contractor was forced to drive 1,000 extra piling at Mr. Cohen's expense. If you were a juryman in the subsequent suit brought by Cohen against Mark and Company, would you decide that the agent of Mark and Company had warranted a stable base to the lot?

Ruling Court Case. Hawkins Vs. Pemberton, Volume 51 New York Reports, Page 193; Volume 10 American Reports, Page 595

Hawkins procured an auctioneer to sell for him three barrels of what was called "blue vitriol." The auctioneer, at the time of the sale, stated in Hawkins' presence, that the article was "blue vitroil, sound and in good order." Pemberton, as the highest bidder, became the purchaser, at eight cents per pound. He believed that it was blue vitroil, and would not have purchased it had he known otherwise. But an examination the following day showed that it was not blue vitroil, but was a mixture containing only a small per cent of the real substance, and was worth only two or three cents a pound. Pemberton refused to accept it. This was an action by Hawkins to recover damages caused by the refusal of Pemberton. Pemberton contends that the statement of the auctioneer who acted for Hawkins, that it was "blue vitroil" was a warranty. Since it was not as represented, he was under no obligation to accept it.

Mr. Justice Earle said: "Did Hawkins warrant the article to be blue vitroil? It is unquestioned that at the time of the sale, through his auctioneer, he represented it to be blue vitroil, and that Pemberton bought it as such, relying upon that representation. To constitute a warranty, it is not necessary that the word 'warranty' should be used. It is a general rule that whatever a seller represents, at the time of the sale, is a warranty. There is no particular phraseology necessary to constitute a warranty, although the assertion or affirmation of a vendor concerning the article sold must be positive and unequivocal." The court was of the opinion that it was a question for the jury as to whether or not there was a warranty in this case.

Ruling Court Case. Powers Vs. Barham, Volume 4 Adolph And Ellis Re-Ports, Page 473

Barham sold four pictures to Powers for £160. In the bill of sale, the goods were stated, "four pictures, views in Venice, Coraletto, £160." Now Coraletto was a famous painter, and pictures painted by him were worth as much as the amount for which these were sold. Powers, believing that the statement in the bill of sale was a warranty to that effect, bought them. It was subsequently found that they were not painted by Coraletto, and were, for that reason, worth very little. Powers, thereupon, brought this action to recover damages for breach of warranty.

Barham contended that this statement was not a warranty, but only a statement of his opinion.

Lord Denman, Chief Justice, said: "It may be true that, in the case of very old pictures, a person can express only an opinion as to genuineness, but the case here is that pictures were sold with a bill of parcels, containing the words, "four pictures, views in Venice, Coraletto." Now words like these must derive their explanation from the ordinary way in which such matters are treated. It is, therefore, for the jury to say, under all the circumstances, what was the effect of the words, and whether they implied a warranty of genuineness, or conveyed only a description, or an expression of opinion." The jury found that the words amounted to a warranty of genuineness. Judgment was, therefore, given for Powers.

Ruling Law. Story Case Answer

It has just been stated that a warranty is a statement of fact, and that a mere expression of opinion does not give the buyer any rights. It is not always an easy question to decide whether a given statement is one of fact or of opinion, and no definite rule can be asserted by which the distinction may be determined. This question must be decided by the jury, taking into consideration all the facts and circumstances of each case.

The talk of the selling agent, in the Story Case, cannot be construed as a warranty. It was, at most, an expression of opinion, and in all probability was so regarded by the purchaser of the lot.