There can be no doubt now, of course, that a seller may promise, in consideration of the purchase of goods from him, that he will be answerable for their present, or, indeed, for their future condition. Nor is it open to doubt that a seller who in terms warrants the goods which he sells, thereby enters into such a contract. But when a seller is held liable on a warranty for making an affirmation of fact in regard to goods in order to induce their purchase, to hold that such an affirmation is a contract is to speak the language of pure fiction. In truth, the obligation imposed upon the seller in such a case is imposed upon him not by virtue of his agreement to assume it, but because of a rule of law applied irrespective of agreement. The obligation is quasi-contractual, inasmuch as the remedy of assumpsit is allowed for its enforcement. The confusion of thought as to the nature of the obligation seems to be in great measure due to the allowance in modern times of this remedy for breach of any warranty, whether in reality constituting a contract or only a representation. But assumpsit was not allowed as a remedy for breach of warranty until near the close of the eighteenth century.11 And a declaration in tort without an allegation of scienter is still generally regarded as permissible.12 The decisions so holding are not, as is sometimes supposed, a mere following of early authority after the reason for the earlier rule has ceased to exist; they involve a recognition of the fact that warranty is a hybrid between tort and contract. This was clearly recognized by Blackstone,1' who classifies warranties with contracts "implied by reason and construction of law." Under this heading, together with warranties, he inserts a statement of such obligations as this: "If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest." 14

8 3T.R.51.

9 Supra, Sec. 071.

10 "In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment. In the former case it is a warranty, in the litter not." De LassaUe v. Guildford, [1901] 2 K. B. 215, 221. The statement was borrowed from Benjamin, Sales. It appears in the first and every subsequent edition (5th Eng. Ed. 650), and has also been approved by American courts Garleton v. Jenks, 80 Fed. 937, 26 G. G. A. 265; Roberts v. Applegate, 153 III. 210, 38 N. E. 676. It has, however, been disapproved by the House of Lords. Heilbut v. Buckleton, [1913] A. G. 30. A criticism of this decision showing its inconsistency with previous cases may be found in 27 Harv. L. Rev. 1.

11 The first decision reported permitting it is Stuart v. Willdns, 1 Doug. 18.

12 Shippen v. Bowen, 122 U. S. 675, citing Greeham v. Poatan, 2 C. & P. 540; House p. Fort, 4 Blackf. (Ind.) 293, 296; Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 520, 18 Am. Dec. 317; Las-siter v. Ward, 11 Ired. L. (N. C.) 443, 444; Trice v. Cockran, 8 Gratt (Va.) 442, 450, 56 Am. Dec 151. To the same effect are Farrell v. Manhattan Market Co., 198 Mass. 271; Erie City Iron Works v. Barber, 100 Pa. St. 125;

Place v. Merrill, 14 R. I. 578; Piche p. Bobbins, 24 R. I. 325, 53 Atl. 03; Watson p. Jones, 41 Fla. 241, 25 So. 678; Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 54 L. R. A. 417, 98 Am. St. Hep. 406. See, however, the contrary decisions, Mshurin v. Harding, 28 N. H. 128, 60 Am. Dec 401; Galdbeck p. Simanton, 82 Vt. 69, 71 Atl. 881, 20 L. R. A. (N. S.) 844; Slack p. Bragg, 83 Vt. 404, 76 Atl. 148; Pierce v. Carey, 37 Wis. 232.

13 3 Comm. 163-165.

14 3 Bl. Comm. 164, citing 10 Rep. 56.

Nor is the law of sales the only place where express or implied innocent misrepresentations may impose liability as a warrantor on the party making them. A restaurant-keeper may on this principle be liable for furnishing poor food,14a and one who hires building or construction work may make himself liable for the adequacy of the plans which he furnishes. 14b they are not words of offer. The only reasonable inference that can be drawn in either case is that representations of fact were made for the purpose of inducing the plaintiff to purchase shares. In the American case it was held that scienter need not be alleged or proved, the court saying: "Use of a statement of the corporate business by a director negotiating a sale of his stock therein could not be regarded as other than a direct affirmation of its correctness, and, if it was delivered for the purpose of assuring the buyer of the truth of the facts therein stated, and to induce him to purchase, and the buyer purchases in reliance thereon, there is an express warranty." 17 The English case held that the directors were not liable because scienter was not proved; yet the English decisions on the law of warranty make it evident that the South Carolina Court was following clear English precedents.