2 In Morrill v. Wallace, 9 N. H. 111, Mr. Justice Parker, after commenting on the cases, says: "We think that the matter does not depend upon the question whether it was a representation or not, or whether the vendor intended to be bound by a warranty or not, nor upon any particular form of words, but upon the question whether the vendor made any assertion or affirmation respecting the kind, quality, or condition of the article, or whether there was merely an expression of judgment, opinion, chattel is his own, he warrants his title.1 In fact, the mere sale of a thing, as we shall see, of itself constitutes a warranty that the title is in the vendor. But a mere expression of judgment or opinion, as to the nature and quality of the goods sold, if made in good faith,2 or a simple commendation of goods, or vague assertions with, regard to their value, do not amount to a warranty. Simplex commendatio non obligat.3 or belief. If the vendor made an assertion of that nature, upon which he intended the vendee should rely, and upon which he did rely, that is sufficient. Duffee v. Mason, 8 Cow. 25; Vernon v. Keyes, 12 East, 637. An affirmation of an independent fact, made during a negotiation for a sale, - as, for instance, a declaration that another person had offered a particular sum, - is not to be regarded as a warranty. 2 Kent, Comm. 381; Davis v. Meeker, 5 Johns. 354.
"It is well settled that there is no particular form of words necessary to constitute a warranty. 19 Johns. 290; 2 Cow. 438; 4 Ib. 440; 8 lb. 25; 10 Wend. 413; 13 Ib. 278; 3 Vt. 53. 'I promise ' that the matter is so, is as well as if the words were, ' I will warrant that it is so.' 19 Johns. 290. And so if any other words of affirmation are used in such a manner as to show that the party expects or desires the other to rely upon the assertion as a matter of fact, instead of taking it as an expression of the judgment or opinion of the vendor, it amounts to the same thing." But it must be made in the course of or in reference to the sale. Hopkins t;. Tanqueray, 15 C. B. 130; 26 Eng. Law & Eq. 254. The tendency is to hold that any representation or positive statement of material facts by a vendor, which influences the vendee to make the purchase, is equivalent to or amounts to an express warranty. Tuttle v. Brown, 4 Gray, 457; Randall v. Thornton, 43 Me. 226; Burton v. Young, 5 Harr. 233; Blythe v. Speake, 23 Texas, 430; Lamme v. Gregg, 1 Met. (Ky.) 444. But see Stucley v. Baily, 1 H. & C. 405 (1862).
"There is nothing magical, nor necessarily any thing technical, about a warranty."
1 Pasley v. Freeman, 3 T. R. 58; Medina v. Stoughton, 1 Salk. 210; 1 Ld. Raym. 593; Jones v. Bright, 3M. & P. 155; 5 Bing. 533; Whitney v. Sutton, 10 Wend. 413; Gray v. Cox, 4 B. & C. 108; Wood v. Smith, 5 Man. & R. 124; Cave v. Coleman, 3 Man. & R. 2; Button v. Corder, 7 Taunt. 405; Adamson v. Jarvis, 12 Moore, 241.
2 Morrill v. Wallace, 9 N. H. 111; Ricks v. Dillahunty, 8 Port. 134; Baum v. Stevens, 2 Ire. 411; Foggart v. Blackweller, 4 Ire. 238; ante, § 511; Henshaw v. Robins, 9 Met. 88. Whether a statement made by the seller of a cow that " she is all right" is a warranty, is a question for the jury. Tuttle v. Brown, 4 Gray, 457 (1855).
3 Chandelor v. Lopus, Cro. Jac. 4; Jendwine v. Slade, 2 Esp. 572; Power v. Barham, 4 Ad. & El. 473: 1 Mood. & R. 507; 7 C. & P. 356; Wood v. Smith, 5 Man. & R. 124; Best v. Osborn, 2 C. & P. 74; Budd a particular quality or adapted to a specific use, in extension of the terms of the bill of parcels.1
Every man will trumpet forth the goodness of his wares, and it is the folly of the buyer, if he suffer himself to be imposed upon by boastful talk. And, therefore, any untrue affirmation of a matter concerning which, by ordinary diligence, the buyer might have obtained correct information, will not be such a deception as to impose upon the seller the obligation of a warranty.1
§ 1054. Where a bill of parcels, or sale note, is given, describing the goods sold, such description constitutes a warranty that the goods are precisely what they are described.2 Thus, in an action on a sale note for "fifty-eight bales of prime singed bacon," it was decided that the note amounted to a warranty that the article sold was prime singed bacon.3 . So, also, where.the words of a bill of parcels were, "sold E. T. Hastings two thousand gallons prime quality winter oil," it was held that it constituted a warranty that the oil was of prime quality.4 So when wine was described in a bill of sale as " superior old port wine."5 But where a bill of parcels is given, and it contains no description of the quality of the article sold, a warranty will not be implied, that they are of v. Fairmaner, 8 Bing. 48; 1 M. & S. 81; Freeman v. Baker, 2 Nev. &. Man. 446; 5 C. & P. 475; 1 Story, Eq. Jur. § 199, 200, 201; ante, § 511.
1 1 Roll. Abr. 101, pl. 16; 1 Sid. 146; Chandelor v. Lopus, Cro. Jac. 4; Dyer v. Hargrave, 10 Ves. 505; Sugden, Vend. & Purch. 543 (3ded.), 19. As to the effect of misrepresentation and concealment, see ante, § 632 to § 649.
2 Batturs v. Sellers, 5 Harr. & Johns. 117; 6 Harr. & Johns. 249; Henshaw c. Robins, 9 Met. 87; Bradford v. Manly, 13 Mass. 139; Power v. Barham, 4 Ad. & El. 473; 2 Kent, Comm. 479. But see Seixas v. Wood. 2 Caines, 48; Tye v. Fynmore, 3 Camp. 462; Thrall v. Newell, 19 Vt. 202; Morrill v. Wallace, 9 N. H. 115.
3 Yates v. Pym, 6 Taunt. 446. A bill of sale of gunny cloth, specifying the invoice weight, is not a warranty that the actual weight is substantially the same with the invoice weight; and evidence that such is the understanding among dealers in that article in Boston is inadmissible. Rice v. Codman, 1 Allen, 377 (1861).
4 Hastings v. Lovering, 2 Pick. 214. See Hogins v. Plympton, 11 Pick. 97.
5 Osborne 9. Hart, 19 Weekly Rep. 331 (1871).
§ 1055. But if a bill of parcels contain an express warranty in respect to certain qualities, no other warranty will be implied, on the ground that "Expressio unius est exclusio alterius."2 And therefore, if there be additional words of description, it would seem that they do not constitute a warranty. So, also, where the description must, from the nature of the case, be considered as a mere statement of opinion, - as if it be in respect to the authorship of an old picture, - the description, unconnected with words of warranty, would not, of itself, constitute a warranty. And it is for a jury to determine whether it were intended as a warranty, and so understood by the buyer.3 But if there be no