To any one who still inclines to accept as fact the fiction of a contract where a warranty is based on a seller's misrepresentation of the quality of his goods, the argument may be put in this way. If it creates a contract for S to say of his horse when he sells it to B in order to induce the purchase, "the horse is sound," why is it not equally a contract if T should say precisely the same thing to B and thereby induce a sale of S's horse? If S's words to a buyer really mean "if you will buy my horse I undertake to be responsible for the truth of my assertion that the horse is sound," why does it not equally follow that if T should make similar statements to the buyer to induce the sale of S's horse that the same construction of an offer should be put upon them? A recent decision of the Supreme Court of South Carolina 15 furnishes an interesting comparison in this connection with the well-known case of Deny v. Peek16 In the latter case the plaintiff was induced to take shares in the company by a misrepresentation of the directors in regard to a right which they stated had been given by special act of Parliament to use steam or other mechanical motive power. In the South Carolina case the plaintiff was induced to buy shares of stock by representations of the seller as to the corporate assets and liabilities. It can hardly be thought that the representations in these two cases are to be distinguished on any other ground than that one was made by a seller, and the other by persons interested in the taking of shares by the plaintiff but not interested as sellers. As a pure question of construction of language, surely if the words in one case amount to an offer to contract, they do so in the other case. In truth, it is submitted
14a See supra, 996a. 14b See infra, Sec.1966.
15 Iler v. Jennings, 87 8. Gar. 87, 68 S. E. 1041. 16 14 App. Gas. 337.
An honest misrepresentation, then, made by a seller to a buyer in regard to the title, kind or quality of goods in order to induce the sale, will render him liable.17a