(d) Hart v. Windsor. 12 M. & W. 68; Sutton v. Temple, 12 M. & W. 52, where the subject is very ably examined and in writing, and contains no warranty, there parol evidence is not admissible to add a warranty. (f) And if there *be ' 590 a warranty in writing, it cannot be enlarged or varied by parol evidence.(y) But although there be a writing between the parties, if it does not amount to a contract of Bale, as if it be an ordinary bill of sale, merely intended as a receipt, or an acknowledgment of the payment of the price, then it seems that parol evidence is admissible to show the actual terms of the sale, and that there was a warranty. (h)

1 As in sale of a live cow by a farmer to retail butchers, there is no implied warranty that she is fit for food, although he knows that they buy her for the purpose of cutting her up into beef for immediate domestic use. Howard v. Emerson, 110 Mass, 320. Ward v. Hobbs, 2 Q. B. D. 331; 3 Q. B. D. 150. See also Ryder v. Neitge, 21 Minn. 70. And in Giroux v. Stedman, 14.") Mass. 439, it was held that where a farmer, not being a regular dealer in provisions, killed a hog and Bold it. knowing that the purchaser intended to eat it, there was no implied warranty that it was fit for food.

2 Smith v. Marrable, 11 M. & W. 5, referred to above, note (d), has been approved and followed in England, and it may be now regarded as settled there that there is an implied warranty or condition that a furnished house shall be tenantable at the time the tenancy is to begin, Wilson v. Finch-Hatton, 2 Ex D 336.

No warranty can be implied from circumstances, if there be an express refusal to warrant. (e) And where the contract of sale is discussed. In the last case, A hired in writing the eatage of twenty-four acres of land from B for seven months, at a rent of £40, and stocked the lands with beasts, several of which died a few days afterwards, from the effect of a poisonous substance which had been accidentally spread over the land without B's knowledge. Held, that A could not abandon the land for breach of an implied contract in B, but continued liable for the whole rent. These decisions may be in conflict with, and if so, doubtless overrule, the case of Smith v. Marrable, 11 M. & W. 5, where it was held, that in a lease of a house and furniture, for a temporary residence at a watering-place, and where the furniture formed the greater part of the consideration of the contract, there was an implied warranty that the house and furniture should be fit for the purpose for which it was hired; and Lord Abinger, in Sutton v. Temple, attempted to distinguish the two cases. The other judges, however, were inclined to think, both in Sutton v. Temple and Hart v. Windsor, that Smith v. Marrable could not be supported. And the same may be said of Edwards v. Etherington, Ry. & M. 268; s. c. 7 Dow. & R. 117; Collins v. Barrow, 1 Mood. & R. 112; Salisbury v. Marshall, 4 C. & P. 65. The doctrine of the text is sustained also in two cases in Massachusetts. Thus, in Dutton v. Gerrish, 9

Cush. 89, the defendant being the owner of a store, in April, 1849, leased the same to the plaintiffs, who filled it with dry goods. In June, 1849, the roof and walls of the store fell in, and buried the plaintiffs' goods in the ruins; and to recover the price of these goods the plaintiffs brought their action. The lease of the plaintiffs contained no express warranty that the building was fit for a dry goods warehouse, or for any other purposes. The plaintiffs disclaimed any imputation of fraud or misrepresentation on the part of the defendant. The court held that, as the lease contained no express warranty, the plaintiffs could not recover, there being no warranty implied in law on the part of the lessor of real estate, that it is fit or suitable for the purposes for which it is leased or occupied. They also held, that decisions in reference to leases of furnished lodgings, and to warranties implied upon the sale of goods, were not applicable to this case The same doctrine is held in Foster v Peyser, 9 Cush. 242 See also the learned note to this last case, in 5 Law Rep. (N s.) 155, where the authorities on this point are reviewed. See also ante, p. * 501, note (/).

(e) Rodrigues v. Habersham, 1 Spears, 314. See also Bywater v Richardson, 1 A. & E. 508, Atkins v Howe, 18 Pick. 16.

In both these cases the lease was for a period of a few weeks or months during the fashionable season of the place where the house was located, though the language of the court was not entirely confined to such a case. In Ingalls v. Hobbs, 156 Mass. 348, the Supreme Court of Massachusetts, following the English cases, held that, "In a lease of a completely furnished dwelling house for a single season, at a summer watering place, there is an implied agreement that the house is fit for habitation, without greater preparation than one hiring it for a short time might be reasonably expected to make in appropriating it to the use for which it was designed." In Franklin v. Brown, 118 N. Y. 110, a furnished house was, when leased, unfit for habitation, owing to noxious gases (not originating in the house). The court questioned somewhat the correctness of the English cases, but in deciding that the lessee was not entitled to relief drew two distinctions between the English cases and the case at bar: " 1st, It involves a lease for the ordinary period of one year, instead of a few weeks or months during the fashionable season. 2d, The cause of complaint did not originate upon the leased premises, was not under the control of the lessor, and was not owing to his wrongful act or default." In Edwards v. McLean, 122 N. Y. 302, it was held that the lessor was not responsible for infection arising in a furnished house after the execution of a lease for four months, though before the beginning of the term, and that there was no defence to an action for rent. In Fisher v. Lighthall, 4 Mackey, 82, it was held broadly that in the letting of a furnished house there is no implied contract or condition that it shall be habitable.