Even more difficult questions have arisen in regard to other false statements of infante-especially warranties of quality or title. The action upon a warranty is older than the action of assumpsit, deceit being regarded as the gist of the action. In modern times a warranty has been regarded as contractual in its nature, but the right to bring an action sounding in tort upon it, having been early established has persisted. Undoubtedly many, perhaps most, warranties are representations of fact as well as promises, but in other cases the warrantor's liability is wholly based on a promise, and so far as there is any representation to be implied from the warranty, it is one of opinion. Even where a warranty contains a false representation of fact, the seller may be unaware that his representation is false, and in such a case what is usually held to be an essential element of a right of action for deceit is lacking. If an action of tort is allowed under such circumstances against an adult, the gist of the action may fairly be regarded as contractual or quasi-contractual, and if the warrantor is an infant, his privilege should protect him from liability. If, however, an infant makes representations of fact, known to him to be false, and these representations are relied on, the fact that the infant has also warranted the truth of his statements should not protect him. This reasoning agrees with that in a South Carolina decision,80 and finds some support from other cases, not directly in point, for instance, the decisions cited in the preceding section holding an infant liable for misrepresenting his age, and other decisions in which it was held that an infant who obtains property with the intent not to pay for it is liable in tort.81 The broad statement sometimes made82 that an infant is not liable for a tort which grows out of contractual relations is also discredited by another class of cases which hold that if property is bailed to an infant for one purpose and in violation of his contract he uses it for another he is guilty of conversion ;83 and that a negligent infant bailee is liable for his negligence.84 Nevertheless there are decisions holding without qualification that an infant warrantor is not liable in any form of action or under any circumstances.85 The distinction is not observed in these cases between holding the infant to make good the warranty and holding him responsible for damage caused by fraudulently inducing the plaintiff to contract with him. The former ought not to be allowed even though the action is in tort; the latter ought to be.86
General Motorcyle Co., 230 Mass. 54, 119 N. E. 359; Brown p. McCune, 5 Sandf. 224, 229; Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R. A. 561,15 Am. St. Rep. 931. See also Price v.Hewett, 8 Ex. 146; Bartlett v. Wells, 1 B. A S. 836; Brown v. Dunham, 1 Root, 272; Geer v. Hovy, 1 Root, 179; Conrad v. Lane, 26 Minn. 389, 4 N. W. 695, 37 Am. Rep. 412; United States Corp v. Ulrickson, 84 Minn. 14, 20, 86 N. W. 613, 87 Am. St. Rep. 326; Ferguson v. Bobo, 54 Miss. 121, 131; Keen v. Hartman, 48 Pa. St. 497, 88 Am. Dec 472. 77Davidson v. Young, 38 111. 145;
Rice v. Boyer, 108 Intl. 472, 9 N. E. 420, 58 Am. Rep. 53; Yeager v. Knight, 60 Miss. 730; Fitts v. Hall, 9 N. H. 441 (the leading case); Eckstein v. Frank, 1 Daly, 334; Kilgore v. Jordan,
17 Tex. 341; Carpenter v. Pridgen, 40 Tex. 32.
78 He is not, however, liable for the torts of his agents, under the doctrine of respondeat superior. Covault v. Nevitt, 157 Wis. 113, 146 N. W. 1115, 51 L. R. A. (N. S.) 1092.
79Nash v. Jewett, 61 Vt. 501, 503,
18 Atl. 47, 4 L. R. A. 561, 61 Am. St. Rep. 931.
80Word v. Vance, l Nott 4 McC. 107, 9 Am. Dee. 683. The court in view of the finding of the jury that the infant knew of the falsity of his representations held the plea of infancy ineffectual. Baying: "This is an action, as well in form as in substance, ex delicto, and when such is the cause of action, even where the form is ex contractu, the defense of infancy will not avail. Bristow v. Eastman, 1 Esp. 172." In Bristow v. Eastman, the action of money had and received was allowed against an infant to recover money embezzled by him. To the same effect are Shaw v. Coffin, 68 Me. 254, 4 Am. Rep. 290; Elwell v. Martin, 32 Vt. 217.
81Mathews v. Cowan, ,19 111. 341; Ashlook v. Vivell, 29 I11. App. 38S; Wallace v. Moras, 5 Hill, 391. See also Badger v. Phinney, 15 Mas. 359, 8 Am. Deo. 105; Walker v. Davis,
1 Gray, 506; Gaunt v. Taylor, 15 N. V. S. 689; Harseim v. Cohen (Tex. Civ. App.), 25 8. W. 977.
82 See, e. g., Cooley on Torts, 106;
2 Kent's Com. 241; Collins v. Gif-ford, 203 N. Y. 465, 96 N. E. 721, 38 L. R. A. (N. S.) 202; Lowery v. Gate, 108 Tenn. 64, 64 S. W. 1068, 57 L. R. A. 673, 91 Am. St. Rep. 744. The authorities on the liability of an infant for a tort are collected in a note in 57 L. R. A. 673.