Representations to be distinguished from conditions and warranties, sec 212.

There must be causal relation between misrepresentation and contract, sec 213.

Contract induced by honest misapprehension may be rescinded, though no action for deceit may be maintained, sec 214.

Expressions of opinion not representations, sec 215.

Misrepresentations must have been material, and must have produced the injury, sec 216.

Suppression of facts does not bind unless amounting to distortion of truth, sec 217.

A condition negatives concurrence of minds; warranty assumes concurrence, but gives damages for misstatement, sec 218.

Warranty need not be in any particular words, sec 219.

Warranty on one point excludes general implied warranty, sec 220.

Supplying for particular purpose implies fitness, sec 221.

Selling meat for human food implies fitness, sec 222.

Selling by merchant implies merchant-ibility, and by manufacturer implies that he made the goods, sec 223.

Defects open to inspection not warranted against, sec 224.

Selling by sample implies correspondence with sample, sec 225.

Representation may be an estoppel, sec 226.

No warranty when buyer depends on his own judgment, sec 227.

Vendor may be liable for negligence, sec 228.

Sale "with all faults" excludes warranty, sec 229.

Warranty of title implied in sale, sec 230.

To sustain such suit there must be eviction, sec 231.

Sec 212

Warranties and conditions involve representations, but there may be representations which are neither conditions nor warranties. "With respect to statements in a contract descriptive of the subject matter of it, or of some material incident thereof, the true doctrine, established by principle as well as authority, appears to be, generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty, that is to say, a condition on the failure or non-performance of which the other party may, if he is so minded, repudiate the contract in toto, and so be relieved from performing his part of it, provided it has not been partially executed in his favor. If, indeed, he has received the whole or any substantial part of the consideration for the promise on his part, the warranty loses the character of a condition, or, to speak perhaps more properly, ceases to be available as a condition, and becomes a warranty in the narrower sense of the word, viz., a stipulation by way of agreement, for the breach of which a compensation must be sought in damages."1-A representation is therefore, distinguishable from a condition in this, that while all conditions are representations, yet there may be representations which are not conditions, in which cases the untruth of the representation does not prevent the contract from taking effect, the validity of the contract not being dependent on the truth of the representation. And while all warranties involve representations, yet no representation is a warranty unless it includes an engagement that a particular thing possesses a certain material quality.2

Representations to be distinguished from conditions and warranties.

1 Williams, J., Belin v. Burness, 3 B. & S. 751.

2 See more fully as to this distinction, infra, sec 559. In Behn v. Burness, 1 B. & S. 877 ; 3B. & S. 751, above cited, the action was brought upon a charter party, dated Oct. 19, 1860, which provided, that the plaintiff's ship, "then in the port of Amsterdam," should sail from thence to Newport, and there be loaded by the defendant with coal for a voyage to the East Indies. It turned out, however, that the ship did not arrive at Amsterdam until Oct. 23d. It was held that the question of time was material; that the vessel being at Amsterdam on Oct. 23d was a condition precedent; and that on this condition not being satisfied, the defendant was not bound to load the cargo. See this case discussed in Pollock, 3d ed. 497, 505;.

Anson, 133. That warranty may be implied from usage, see infra, sec 910. In Winsor v. Lombard, 18 Pick. 60, a warranty was held to be implied in the words "sold 2000 gallons prime quality winter oil." In this case Shaw. C. J., said : " It is now held that, without express warranty or actual fraud, every person who sells goods of a certain denomination or description undertakes, as part of his contract, that the thing delivered corresponds to the description, and is, in fact, an article of the species, kind, and quality thus expressed in the contract of sale." To the same effect, see infra, sec 559 et seq., 909, 912 ; notes to Chandelor v. Lopus, Smith's Lead. Cas. 7th Am. ed. 299 et seq.; Hay on Ins. sec 181-4; Henshaw v. Robins, 9 Met. 87 : Lamb v. Crafts, 12 Met. 353; Hawkins v. Pemberton, 51 N. Y. 204; Wolcott v sec 213. As will be hereafter more fully seen, the misrepresentation must have contributed to the loss of the party imposed upon, or it will be no ground for setting aside the contract.1 It is not necessary that it should have been the sole cause of the contract.2 If this condition was required, there could be no misrepresentation, no matter how flagrant, that would avoid a contract, since there is no contract to which other motives do not contribute beside that caused by misrepresentation of the other side. It is enough if the representation was such as to turn a judgment which might otherwise have been in equilibrium.3 "It must be a representation of something as a fact upon which the purchaser relies, and by which he is induced, to some extent, to make the purchase, or is influenced in respect to the price or consideration."4- How far contributory negligence bars will be hereafter discussed in connection with fraud.5 It may be here noticed that "a misleading statement or omission made by mere heedlessness or accident may deprive a vendor of his right to specific performance, even if such that a more careful buyer might not have been misled."6 But a party who neglects to examine a title, cannot, on the mere ground of misrepresentation by the vendor, set aside an executed conveyance.7