Whether representations made by a seller constitute a warranty is frequently a matter of extreme difficulty to decide. Mere loose words of commendation, even though they may induce a purchaser to buy, do not therefore amount to a warranty, as if a seller were to say: "I can fully recommend this horse," or "I would sell it to my dearest friend". (Las-celles on Horse Warranty, 2nd edition, 1881, p. 46.) A warranty may, however, be gathered from a series of letters passing between the parties, as in Salmon v. Ward (2 C. v. P. 211, 1825). In that case C. J. Best says: " The question is whether the jury and I can collect that a warranty took place; I quite agree that there is a difference between a warranty and a representation, because a representation must be known to be wrong. The plaintiff in his letter says: 'you remember you represented the horse to be five years old', to which the defendant answers, ' the horse is as I represented it'." The jury found that there was a warranty.
Hopkins v. Tanqueray (15 C.B. 130; 23 L.V. C.P. 102, 1854) affords an excellent illustration of the difference between a mere representation and a warranty. In that case, on the day before the sale, while the plaintiff was looking at the horse in the stable, the defendant came in and said to the plaintiff: "You have nothing to look for, I assure you; he is perfectly sound in every respect," and the plaintiff replied: " If you say so, I am satisfied," and bought the horse, presumably on the strength of the defendant's representation. In an action on the assumed warranty the court ruled that there was no warranty. This case, too, confirms the ruling in West v. Jackson (16, 2 B. 280, 1851) that the warranty must be made during the treaty; antecedent representations in no way affect the validity of the sale.
When a representation is made during actual treaty, which afterwards becomes an important factor in the transaction, it constitutes an intrinsic part of the warranty; but if it forms no part of contract, but was merely made by the vendor to induce the purchaser to buy, it is not a warranty.
No action, it should be noted, will lie for simple misrepresentation: " The rule which is to be derived from all the cases is that where, upon the sale of goods, the purchaser is satisfied without requiring a warranty, he cannot recover upon a mere representation of the quality by the seller, unless he can show that such representation was bottomed in fraud" (Ormrod v. Huth, 14 M. v. W. 651). Where the misrepresentation is perfectly innocent, both parties believing the horse to be sound, a slightly different construction is put upon the transaction, according as there is or is not a general warranty. In the former case the buyer has a remedy, as the seller is liable for the mistake; but where there is no warranty, the buyer must pay the price agreed upon. In Kennedy v. Panama etc. Mail Co. (L.R. 2 B. 580, 587, Ex. Ch., 1867) Mr. Justice Blackburn says: "There is, however, a very important difference between cases where a contract may be rescinded on account of fraud and those in which it might be rescinded on the ground that there is a difference in substance between the thing bargained for and that obtained. It is enough to show that there was a fraudulent representation as to any part of that which induced the party to enter into the contract which he seeks to rescind; but when there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission unless it is such as to show that there is complete difference in substance between what was supposed to be and what was taken, so as to constitute a failure of consideration. For example, when a horse is bought under the belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as to the horse's soundness, the contract may be rescinded. If it was induced by an honest misrepresentation as to its soundness, though it may be clear that both the vendor and purchaser thought they were dealing about a sound horse and were in error, yet the purchaser must pay the whole price, unless there was a warranty."
Formerly there could be no warranty against future unsoundness, and so Blackstone lays down; but the law now is different, and in Eden v. Parkinson (2 Douglas, 732) it is distinctly stated, " There is no doubt you may warrant a future event".