Sec. 42. What Constitutes Express Warranty

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods nor any statement purporting to be a statement of the seller's opinion only shall be construed a warranty." 22

(a) Affirmation of fact is warranty.

We see from the above language that it is largely a question whether a statement was given and taken as a matter of fact or a matter of opinion which is decisive whether the assertion is or is not a warranty. It is well settled law that a mere opinion or prediction on the part of the seller is not a warranty, for the plain reason that the buyer ought simply to receive it as such. He may indeed be influenced by it, but, after all, he should know that it may or may not be true. An opinion is but an opinion; it is a matter resting alone in judgment. It may be based upon facts but it does not purport to state a fact. If I say that a horse is sound I state a fact which may be true or false and this therefore constitutes a warranty if relied upon.23 But if I say that a horse is considered sound, or that I believe him to be sound, that is a different matter.24 So if I predict a future event, it is a mere opinion. No one can foretell the future. I may say stocks will rise, oil wells will yield, gold mines will pay, and though I be the best judge on earth of those events, still every one must know that I am only giving my opinion. An express warranty, then, must be the statement of a fact concerning the goods meant to be relied upon, and which is relied upon. It does not matter that the seller speaks as he believes. He takes it upon himself that the fact is true. If he says a stone is a diamond, his contract is that it is a diamond, and the buyer is entitled to rely on his statement. And it is not necessary that the parties use the word "warrant" or similar word.

22. Uniform Sales Act, SEC. 12.

(b) Express warranty in description.

It was said in an early case that if one sells a stone calling it a "bezoar stone," that is no warranty that it is a bezoar stone, but the buyer must beware what he gets. But the law has progressed until now the exact contrary is true and a description by a seller is an express warranty that the goods are as described. Thus a sale of a

"sound horse" is a warranty that he is sound. It is not necessary that the word warranty be used. The use of any words in which an affirmation of fact is contained is a warranty.25

(c) Buyer's reliance on warranty.

The buyer must rely upon the affirmation in order to constitute it a warranty. For this reason a general affirmation is considered not to cover a known defect.

Example 7. A warrants a horse to be sound. B, the buyer knows him to have a blind eye. The warranty does not extend to this defect.26

But a buyer need not search for defects, if the seller is willing to expressly warrant against them. So if there is a doubt in the mind of the buyer, the seller may cover it by warranty.

Sec. 43. Whether Alleged Oral Warranties Provable If Contract In Writing

If a contract to sell or a sale is completely reduced to writing alleged oral warranties cannot be introduced for the purpose of changing or adding to the contract as it appears in the writing.

23. Hobart v. Young, 63 Vt. 363.

24. Id.

If the contract of sale has been reduced to writing complete upon its face, statements made orally cannot be regarded as constituting warranties and therefore will not be received in evidence, for it is to be considered that the parties meant the writing to be the expression and evidence of their act.27 But if the writing shows on its face that it was but an incomplete memorandum and was not regarded by the parties as expressing the entire act, then such oral warranties as were really a part of the contract could be proved as though the entire transaction had been oral, unless the statute of frauds was applicable to the particular case (there being no part delivery or payment). Of course this reasoning has no application to implied warranties which exist regardless of the form of contract, except that if the writing covers the point, there cannot be an implied warranty upon the same point.

25. Id.

26. McCormick v. Kelly, 28 Minn. 135.

3. Implied Warranties.

Sec. 44. Doctrine Of Caveat Emptor

Where there is a sale of specific articles which may be inspected by the buyer, and there is no fraud on the part of the seller, and the seller is neither manufacturer or dealer, there is no implied warranty. The buyer must "beware."

The simplest case of sale is that of a specific article before the parties at the time of the bargain which the buyer may inspect. In such a case the doctrine is "caveat emptor" ("let the buyer beware").28

Example 8. A has a horse to sell which he offers to B. The horse is present before the parties, or is where the buyer may inspect him. B buys. Whether B inspects the horse or not, there is no implied warranty of the soundness of the horse, as to any fact discoverable or not by such inspection. If the horse has a hidden disease, A is not blameworthy and cannot be sued. (If the hidden disease were known to A, and could not be discovered on reasonable inspection the duty would be on A to disclose it. See Contracts, title "Fraud.")

27. Seitz v. Brewer's Refng. Co., 141 U. S. 510. See also, generally, the Volume on Contracts in this series.

28. Jones v. Just, L. R. 3 Q. B. 197.

If the seller is a manufacturer, or even a dealer (though all authorities are not agreed on this) and it is apparent that the buyer relies on the seller's superior knowledge or judgment there is an implied warranty that the article is merchantable.29