1 Lamb v. Crafts, 12 Met. 353, 355.
2 Budd v. Fairmaner, 8 Bing. 48. "In this case," said Tindal, C. J., "a "written instrument was produced by the plaintiff to show the nature of the contract between him and the defendant; and we are to interpret that instrument, like all others, according to the intention of the parties. The instrument appears to be a receipt for £10, ' for a gray four-year-old colt, warranted sound.' I should say that upon the face of this instrument the intention of the parties was to confine the warranty to soundness, and that the preceding statement was matter of description only." And again: " A party who makes a simple representation stands, therefore, in a very different situation from a party who gives a warranty. And if so, how can I say that this distinction was not present to the mind of the defendant in this case ? When he sells a gray four-year-old colt, warranted sound, he means to say that he will be responsible for the soundness, but that the rest is only matter of representation, for which he will not be answerable, unless it be shown to be false within his knowledge." See, also, Richardson v. Brown, 1 Bing. 311; Dickenson v. Gapp, cited 8 Bing. 50.' See, also, Story on Sales, § 358, for a fuller statement of this doctrine. Deming v. Foster, 42 N. H. 165 (1860).
3 Power v. Barham, 6Nev. & Man. 62; 7C.&P. 356; 4 Ad. &E1. 476. In this case Lord Denman said: "I think that the case was correctly left to the jury. We must take the learned judge to have stated to them that the language of Lord Kenyon, in Jendwine v. Slade, was merely the intimation of his opinion upon such a contract as was then before him. It may be true that, in the case of very old pictures, a person can only express an opinion as to their genuineness; and that is laid down by Lord Kenyon in the case referred to. But the case here is, that pictures are sold with a bill of parcels, containing the words, ' Four pictures, Views express warranty, and the description be of a matter in respect to which the seller has, or ought to have, knowledge, and which is susceptible of accurate and certain knowledge, it will constitute a warranty. Thus, if a picture be stated to be by a certain artist who is living, or but lately dead, the description will not be considered as a mere statement of opinion, but as a warranty.1 It must be confessed that the decisions are apparently very contradictory on this subject, but it is believed that these distinctions will nearly reconcile them.
§ 1056. Where an express warranty is couched in technical terras, it is to be interpreted according to their technical signification, unless they be manifestly used in a different sense, and differently understood by the buyer.2 What the intention is, is to be gathered from usage and custom, and constitutes a question for the jury. Thus, where a horse is warranted to be "sound," the actual extent of the warranty is to be implied from custom and usage, and the intention and understanding of the parties.3 Thus, where a vendor warin Venice, Canaletto.' Now, words like these must derive their explanations from the ordinary way in which such matters are transacted. It was, therefore, for the jury to say, under all the circumstances, what was the effect of the words, and whether they implied a warranty of genuineness, or conveyed only a description, or expression of opinion. I think that their finding was right; Canaletti is not a very old painter. But, at all events, it was proper that the bill of parcels should go to the jury with the rest of the evidence." See, also, Lomi v. Tucker, 4 C. & P. 15; Hill v. Gray, 1 Stark. 434; De Sewhanberg v. Buchanan, 5 C. & P. 343; Jendwine v. Slade, 2 Esp. 573; Hough v. Richardson, 3 Story, 690; Beals v. Olmstead, 24 Vt. 114.
1 Power v. Barham, 4 Ad. & El. 476. See, also, Shepherd v. Kain, 5 B. & Ald. 240; Winsor v. Lombard, 18 Pick. 60; Hogins v. Plympton, 11 Pick. 99, and cases cited supra. See, also, Morrill v. Wallace, 9 N. H. 116; Borrekins v. Bevan, 3 Rawle, 23; and Story on Sales, § 358. But see Seixas v. Wood, 2 Caines, 48, and Swett v. Colgate, 20 Johns. 196.
2 Jones v. Bowden, 4 Taunt. 847, 852; Button v. Corder, 7 Taunt. 405; Cook v. Moseley, 13 Wend. 277. See ante, Rules of Interpretation.
3 Lord Ellenborough did not consider "roaring" an "unsoundness," although he considered it an "unpleasant habit" in a horse. See Bas-sett v. Collis, 2 Camp. 523. But his lordship afterwards changed his mind. See Onslow v. Eames, 2 Stark. 81. "Crib-biting" he also held not to be unsoundness, Broennenburgh v. Haycock, Holt, N. P. 630. Whether ranted the article sold to be "Calcutta linseed," and it was proved that the article sold contained fifteen per cent, of other seed, while the usual adulteration was only about two or three per cent., it was held no misdirection to leave it to the jury to say whether there was such an adulteration as to alter the distinctive character of the article, and whether the adulteration was such as might reasonably be expected.1 So a warranty that cattle will "work evenly in the yoke" is broken if they will not so work when driven by a person of ordinary skill in the management of oxen.2
§ 1057. A general warranty does not, generally, extend to patent defects, which are apparent upon careless inspection, or to defects which are at the time known to the buyer.3 This doctrine stands upon the ground that all patent defects would naturally be within the knowledge of the buyer, and therefore the warranty cannot be presumed to have been intended to cover them.4 But if the vendee did actually neglect to examine, and were unaware of the defect, or were physically unable to perceive the defect, from blindness, the seller will be bound to the full extent of the warranty, although the defect be patent.5 If, therefore, when a bill of it was an "unpleasant habit" or not, he did not vouchsafe an opinion. See Dickinson v. Follett, 1 Mood. & Rob. 299; Shillitoe v. Claridge, 2 Chitty, 425; King v. Price, 2 Chitty, 416; Wellwood v. Gray, Brown on Sales, 311; Watson v. Denton, 7 C. & P. 85; Best v. Osborne, Ryan & Mood. 290; 1 C. & P. 632; 2 C. & P. 74, wherein a cough, the strangle, or " mort du chien" a bone spavin of the hock, and a nerved horse, were respectively considered "unsoundness." These questions are for the jury, however. Lewis v. Peake, 7 Taunt. 153; Atterbury v. Fairmanner, 8 Moore, 32.
1 Wieler v. Schilizzi, 33 Eng. Law & Eq. 333; 17 Com. B. 619.
2 Woodruff v. Weeks, 28 Conn. 328 (1859).
3 Dyerr. Hargrave, 10 Ves. 505; Hudgins v. Perry, 7 Ire. 102.
4 2 Stark. Ev. 905, note n, 2d ed.; Margetson v. Wright, 5 M. & P. 606; 7 Bing. 603. A bill of sale of " one horse, sound and kind," is a warranty of soundness, upon which the vendor is liable if the horse proves to be permanently lame, although the purchaser knew that he was lame a week before the sale, and his lameness was talked of before the sale, and the vendor then refused to give a warranty. Brown v. Bigelow, 10 Allen, 242 (1865).
5 Butterfeild v. Burroughs, 1 Salk. 211; Viner, Abr. Actions, A. c. 7, parcels is given, the vendee examine the articles sold, he does not thereby diminish his right to rely on that as a warranty, if the article sold be so disguised that it was difficult to ascertain whether it corresponded to the description, - or if, in fact, he did not perceive that it differed.1 And even if ample opportunity be given for the examination of an article sold, and the vendee be skilled in relation to such articles, he is, nevertheless, not bound to exercise his skill, where he has the express warranty of the vendor.2
§ 1058. It is not necessary, it has been said, that a warranty should be made directly to the vendee, for if the representation had been previously made by the vendor to another person in respect to the property sold, and that representation be known by the vendor to constitute the basis of a subsequent sale made by him to a third person to whom it is communicated, it would have the same effect as if it were made directly to the vendee.3 There is ground, however, for doubting this doctrine. It is commonly observed that to establish a warranty all the constituents of a contract (of which privity is one) must be proved.4
§ 1059. A warranty is an express or implied statement of something which the party undertakes shall be a part of the contract; and though part of the contract, yet collateral to the express object of it. In many of the cases the circumstance of a party selling a particular thing by its proper description has been called a warranty, and the breach of such contracts a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfil; as if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a warranty. There is no warranty that he should sell him peas; the contract is to sell peas, and if he sends any thing else in their stead, it is a non-performance of the contract.1
Z. b. 15; Bro. Abr. Deceit, pt. 29, citing 11 E. iv. 6; 3 Black. Comna. 465.
1 Henshaw v. Robins, 9 Met. 89; Tye v. Fynmore, 3 Camp. 462; Bradford v. Manly, 13 Mass. 139; Shepberd v. Kain, 5 B. & Ald. 240.
2 Tye v. Fynmore, 3 Camp. 462; Henshaw v. Robins, 9 Met. 89.
3 Crocker v. Lewis, 3 Sumner, 8. See, also, Barden v. Keverberg, 2 M. & W. 63, 64.
4 See Foster v. Coldwell, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Weimer v. Clement, 1 Wright, 147; Rockafellow v. Baker, 5 Id. 319; Deuel v. Higgins, 9 Mich. 223; Tyre v. Causey, 4 Harr. 425; Lindsay v. Davis, 30 Mo. 406; Henson v. King, 2 Jones (N. C), 385.