The rule on the subject of representations recently laid down in Pennsylvania is substantially this: if the parties to a sale are not in a condition of perfect equality as to their ability to judge accurately of the thing sold, false representations of the seller will avoid the contract. (mq)

It is certain that the word "warrant " need not be used, nor any other of precisely the same meaning. It is enough if the words actually used import an undertaking on the part of the owner that the chattel is what it is represented to be; or an equivalent to such undertaking. (n) It may be often difficult to distinfrom his examination. The horse was put up the next clay at auction, and the plaintiff bought him, being induced, as he said, by the defendant's assurance of soundness. Held, in an action for breach of warranty, that there was no evidence to go to the jury of a warranty, the representation not being made in the course of, or with reference to the sale.

(mm) Hahn v. Doolittle, 18 Wis. 196; Marsh v. Webber, 13 Minn. 109; Tewkesbury v. Bennett, 31 Ia. 83.

(mn) Bond v. Clark, 35 Vt 577.

(mo) Gifford v. Carvill, 29 Cal. 589.

(mp) Miller v. Young, 33 Ill. 354.

(mq) Bigler v. Flickingers, 55 Penn. St. 279. See also Harris v. Mullins, 32

Ga. 704, and Overbay v Lighty, 27 Ind. 27

(n) The authorities from Chandelor v. Lopus, Cro. J. 4, to the present day, all agreed that a bare affirmation, not intended as a warranty, will not make the vendor liable. Bacon v Brown, 3 Bibb, 35; Davis v. Meeker, 5 Johns. 354; Budd v. Fairmaner, 8 Bing. 52, where a receipt for " a gray four-year old colt " was held only an affirmation or representation that he was four years old, but was no warranty to that effect. See also Seixas v. Woods, 2 Caines, 48, a very strong case; Holden v. Dakin, 4 Johns. 421; Swett v. Colgate, 20 id. 196; Conner v. Henderson, 15 Mass. 320; Stewart v. Dougherty, .3 guish * between such warranty as this, and the naked praise (nuda laus), or simple commendation (simplex comDana, 479; House v. Fort, 4 Blackf 293; Adams v. Johnson, 15 Ill 345. So where a horse was sold under the following advertisement " To be sold, a black gelding, five years old; has been constantly driven in the plough. Warranted," the warranty was held to apply only to his soundness, and the statement as to age was considered only as an affirmation or representation of his age, and as creating no liability unless there was deceit. Rich-ardson v. Brown, 1 Bing. .'544. See also Dunlop v. Waugh, Peake, Cas. 123; Bower v. Barham, 4 A. & E 473; Jendwine v. Slade, 2 Esp. 572; Willard v. Stevens, 4 Foster (N. H), 271. On the other hand, any affirmation of the quality or condition of the thing sold (not intended as matter of opinion or belief), made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied upon by the purchaser, is an express warranty. Osgood v. Lewis, 2 Har. & G. 495, a very important case on the subject of warranty. Hawkins v Berry, 5 Gilman, 36; Hilman v. Wilcox, 30 Me. 170; Otts v. Alderson, 10 Sm & M. 476; McGregor v. Penn, 9 Yerg. 74; Kinley v Fitzpatrick, 4 How. (Miss.) 59; Beals v. Olmstead, 24 Vt. 115. See also Towell v. Gatewood, 2 Scam. 22; Pennock v. Tilford, 17 Penn St. 456. In Roberts v. Morgan, 2 Cowen, 438, the plaintiff and defendant being in negotiation for an exchange of horses, the former said " he would not exchange unless the latter would warrant his horse to be sound." The defendant answered " He is sound except the bunch on his leg." The horse had the glanders Held, that this was an express warranty. See also Oneida Manuf. Society v. Lawrence, 4 Cowen, 440; Chapman v Murch, 19 Johns. 290. In Cook v. Mosely, 13 Wend. 277 (a sale of a mare), the buyer asked the seller if the mare was lame; the latter answered, " She was not lame, and that he would not be afraid to warrant that she was sound every way as far as be knew." HeId, to amount to a warranty. In Bee-man v. Buck, 3 Vt. 53, the same principle is adopted. So in Wood v Smith, 4 C & P. 45, the buyer of a horse said to the seller, " She is sound, of course? " The latter said; " Yes, to the best of my knowledge." On being asked if he would warrant her, he replied: " I never warrant I would not even warrant myself." This was held to amount to a qualified warranty. The general rule of the text is

Well stated in Ricrks v. Dillahunty, 8 Port.

(Ala) 134. See also Carley v. Wilkins, 6 Barb 557, where it was held, that a. representation made by a vendor, upon a sale of flour in barrels, that it is in qual ity supertime, or extra superfine, and worth a shilling a barrel more than common, coupled with the assurance to the buyer's agent that he may rely upon such representation, is a warranty of the quality of the Hour. In Cave v. Coleman,3 Man. & R. 2, the vendor of a horse told the vendee, " Yon may depend upon it, the horse is perfectly quiet and free from vice." This was held to amount to an express warranty, But see Erwin v Maxwell, 3 Murphey, 241. In Jackson '•. Wetherill, 7 S. & R. 480, the Supreme Court of Pennsylvania, although recog nizing the rule that no particular words were necessary to constitute a warranty, heId, that when the vendor of a horse told the purchaser before the sale that he was sure he was perfectly sqfe. kind, and gentle in harness, this created no warranty, being but a bare affirmation of quality. See also McFarland v. Newman, 9 Watts, 56 In Sheperd v. Temple, 3 N. H. 455, the ven-dor of a lot of timber, most of which was covered with snow, declared that it was of as good quality as some of the sticks which were visible; held, that this did not necessarily amount to a warranty. See Stevens v. Fuller, 8 N. H. 403, as to what is competent evidence to prove a warranty. A statement that a horse's eyes "are as good as any horse's eyes in the world," does not, of itself. necessarily amount to a warranty. House v. Port, 4 Blackf. 293 The question whether any particular affirmation amounts to a warranty is for the jury The criterion is the understanding and intention of the parties. Duffee v Mason, 8 Cowen. 25. Ion-ill v. Wallace, 9 N H. 111; Chapman v. Murch, 19 Johns. 290. It is for the jury to say whether the language used was intended as a mere expression of opinion, or belief, or as a representation Whitney v. Sutton, 10 Wend. 411; Poster v Caldwell, 18 Vt 176; Bradford v. Bush, 10 Ala 386; Baum v Stevens, 9 Ired. L 411: Fpggart v. Blackweller, 4 id. 238; Tuttle v. Brown, 4 Gray. 457. A bare affirmation of soundness of a horse which is then exposed to the purchaser's inspection, is not, per se, a warranty It is of itself only a representation.