* As mere silence implies no warranty, neither do re- '"70 marks which should be construed as simple praise or condemnation; (l) but any distinct assertion or affirmation of quality made by the * owner during a negotiation, (to) for * 580

1 Baldw. 331; Calhoun v. Vechio, 3 Wash. C. C 165; Echelbierger v. Bar-nitz, 1 Yeates, 307; Pearce v. Blackwell, 12 Ired. L. 49. The case of Hill v. Gray,

1 Stark. 434, might seem at first view to conflict with this doctrine. There a picture was Bold, which the buyer believed had been the property of Sir Felix Agar, a circumstance which might have enhanced its value in his eyes. The seller knew that the purchaser was laboring under this delusion, but did not remove it, and it did not appear that he either induced or strengthened it. In an action for the price. Lord Ellenborough nonsuited the plaintiff, saying the picture was sold under a deception. The seller ought not to have let in a suspicion on the part of the purchaser which he knew enhanced its value. He saw the purchaser had fallen into a delusion, but did not remove it. From the report itself, it might seem that Lord Ellenborough here held, that silence alone was a fraudulent concealment, sufficient to vitiate the contract. But the case is explained in the English case of Keates v. Cadogan,

2 E. L. & E. 318; s. c. 10 C. B. 591, Jervis, C. J., saying in Hill v. Gray, there was a "positivi aggressive deceit. Not removing the delusion might be equivalent to an express misrepresentation." And in that case it was held, that where the intended lessor of a particular house knows that the house is in a ruinous state, and dangerous to occupy, and that its condition is unknown to the intended lessee, and that the intended lessee takes it for the purpose of residing in it, he is not hound to disclose the state of the house to the intended lessee, unless ho knows that the intended lessee is influenced by his belief of the soundness of the house in agreeing to take it, or unless the conduct of the lessor amounts to a deceit practised upon the lessee. See also Fox v. Mackreth, 2 Bro. Ch. 420; McEntire v. McEntire, 8 Ired. L. 297; Williams v. Spurr, 24 Mich. 335; Harris U.Tyson, 24 Pa. 347; Law v. Grant, 37 Wis". 548; cf. Williams v. Beazley, 3 J. J. Marsh. 577. - On the other hand, the vendor must not practise any artifice to conceal defects, nor make any representations for the purpose of throwing the buyer off his guard. See Matthews v. Bliss, 22 Pick. 48; Arnot v. Biscoe, 1 Ves. Sen. 95. It is well settled, that misrepresentations of material facts by which a purchaser is misled, vitiate the contract. Bench v. Sheldon, 14 Barb. 66; Doggett v. Emerson, 3 Story, 700; Daniel v. Mil chell, 1 id. 172; Small v. Attwood, 1

Youuge, 407; Bough v. Richards..... .'!

Story. 659; Warner v. Daniels. 1 Woodb. & M. 90. For a case where the suppressio veri is held to be an actionable deceit Paddock v. Strowbridge, 3 Williams, 470 The whole subject is ably examined in 2 Kent, Com. 482, ei seq. And in Bigelow on Fraud fed, 1888) Vol. 1, p. 590, et seq. See also Bean v. Herrick, 3 Fairf. 262, Ferebee v. Gordon, 13 Ired. L. 350; Wood v. Ashe, 3 Stroh. L. 64; Weimer v. Clement, 37 Penn. St. 147.

(l) Thus in Arnott v. Hughes, Chitty on Cont. 393, n., an action was brought on a warranty that certain goods were fit for the China market. The plaintiff produced a letter from the defendant, saying, that he had goods tit for the China market, which he offered to sell cheap. Lord Ellenborough held, that such a letter was not a warranty, but merely an invitation to trade, it not having any specific reference to the goods actually bought by the plaintiff. See also Carter v. Brick, 4 H. & N. 412, where it was held that no warranty was implied in a purchase by sample, where both parties upon inspection took it for granted that the article was of the quality represented by a third party.

(m) It is essential that a warranty, to he binding, be made during the negotiation; if made alter the sale is complete, it is without consideration and void. Roscorla v. Thomas, 3 Q, B. 234; Bloss v. Kittredge, 5 Vt. 28; Towell v, Gatewood, 2 Scam. 22. - If, however, the vendor in a negotiation between the parties a few days before the sale, offer to warrant the article, the warranty will be binding. Wilmot v, Hurd, 11 Wend. 584; Lysney v. Selby, Ld. Raym. 1120 But see Hopkins v Tanqueray, 26 E. L, & E. 254; s. 0. l5 C. B. 130. In this case the defendant, having sent his horse to Tattersall's to be sold by auction, on the day previous to the sale. saw the plaintiff (with whom he was acquainted) examining the horse, and said to him bond fide "You have nothing to look for, I assure you; he is sound in every respect;" to which the plaintiff replied, "If you say so I am satisfied," and desisted the sale of a chattel, which it may be supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or as constituting a warranty. (mm) If such affirmation were made in good faith it is still a warranty; and if made with a knowledge of its falsity, it is a warranty, and it is also a fraud. Whether such affirmation was intended to be, and was received as a warranty, seems to be a question for the jury;(mn) but whether the statements were in law mere expressions of opinion, or affirmations equivalent to warranty, is a question of law. Some light may be thrown on this question, which is sometimes one of much difficulty, by a comparison of two recent cases. It was held in California, that statements of a seller of mining stock, concerning the amount and richness of the ore taken out and the wood and water within reach, were not matters of opinion, but statements on which the buyer had a right to rely. (mo) While it was held in Illinois, that statements by a seller of a patent right for a certain kind of cast-iron coffins, concerning their durability and probable sale, were only expressions of opinion. (mp) It will be noticed that the statements in the case in California referred to the past or present, and those in the case in Illinois referred to the future.