§ 1051. Every affirmation made by the vendor, at the time of the sale,2 in relation to the goods, amounts to a warranty, provided it appear in evidence to be so intended.3 But no store, and afterwards, upon the plaintiff's objecting to pay for the surplus, said to him, "I don't care whether you have it or not, as other parties are ready to purchase it," but finally warranted it to be of a certain quality, and thereby induced the plaintiff to agree to take and pay for it at a reduced price, this evidence, if believed, is sufficient to authorize the jury to find a new contract between the parties as to the surplus, and a warranty of such surplus by the defendant. Dunham v. Barnes, 9 Allen, 352 (1864).
1 See Frazier v. Harvey, 34 Conn. 469 (1867).
2 See Wilmot v. Hurd, 11 Wend. 584, holding that if, when the parties are first in treaty respecting the sale, the owner offer to warrant the article, the warranty will be binding, though the sale do not take place until some days afterwards. See, also, Shull v. Ostrander, 63 Barb. 130 (1863).
3 Pasley v. Freeman, 3 T. R. 57; Wood v. Smith, 4 C. & P. 45; Morrill v. Wallace, 9 N. H. 111; Chapman v. Murch, 19 Johns. 290; Swett v. Colgate, 20 Johns. 196; Henshaw v. Robins, 9 Met. 83; Foster v. Caldwell, 18 Vt. 176; Beals v. Olmstead, 24 Vt. 114. If, in an action to recover for a breach of warranty of three tons of paper stock, there is evidence to show that the plaintiff authorized the purchase of three or four tons, and that the defendant delivered seven tons in the plaintiff's man is bound beyond the actual terms of his warranty; and if he give a restricted or qualified warranty, his liability will not be the same as if it were absolute or general. Thus, if a person say, at the sale of a horse, "This horse is sound, so far as I know," and the horse prove unsound, the warrantor will not be bound, unless proof be given that he knew of the unsoundness of the animal when he made the representation.1 So, also, a bill of sale of a horse, on which he is stated as "considered sound," does not import a warranty of soundness.2 The affirmation must also be made either at the time of the sale,3 or prospectively, in reference to it;4 and a warranty, made after sale, is without consideration, and therefore void.6 A warranty of a future event, however, may be made.6
§ 1052. A warranty may be shown by oral evidence, although there was a common sale note or receipt given, in which nothing was said about a warranty.7 Such instruments may be added to by parol, but it may be different as to a complete and formal bill of sale, especially if it be under seal.
1 Wood v. Smith, 4 C. & P. 45.
2 Wason v. Rowe, 16 Vt. 525.
3 See Hopkins v. Tanqueray, 15 C. B. 130; 26 Eng. Law & Eq. 254.
4 Wilmot v. Hurd, 11 Wend. 584; Hogins v. Plympton, 11 Pick. 99; Lysney v. Selby, 2 Ld. Raym. 1120; 1 Roll. Abr. 96; 1 Str. 414; 1 Salk. 211. And if a party makes an express warranty at the time the trade is concluded, it is of no consequence what statements he may have made in the previous conversation, unless they constitute a qualification of the final bargain. Deming v. Foster, 42 N. H. 165 (1860).
5 Burdit v. Burdit, 2 A. K. Marsh. 143; Towell v. Gatewood, 2 Scam. 22.
6 Lord Mansfield, in Eden v. Parkison, Doug. 735. But see Liddard v. Kain, 2 Bing. 183.
7 Dunham v. Barnes, 9 Allen, 352 (1861). See Rogers v. Hadley, 2 H. &C.227 (1863).
§ 1053. It is not necessary that the words "warrant" or "warranty" should be used.1 Whatever positive affirmation is made by the seller respecting the thing sold, which operates or may operate as an inducement to the contract, is binding upon him.2 Thus, if a vendor barely affirm that a
1 Roberts v. Morgan, 2 Cow. 438. In the case of Henshaw v. Robins, 9 Met. 88, Mr. Justice Wilde says: "To create an express warranty, the word 'warrant' need not be used, nor is any precise form of expression necessary; but every affirmation at the time of the sale of personal chattels amounts to a warranty. This seems to be now settled, notwithstanding the old case of Chandeloru. Lopus, Cro. Jac. 4, as to the sale of a bezoar stone, to the contrary. It was so decided in Osgood v. Lewis and Borrekins v. Bevan, already cited, and in Power v. Barham, 4 Ad. & El. 473; in Shepherd v. Kain, 5 B. & Ald. 240; and in Freeman v. Baker, 5 C. & P. 475. And even in New York, where, in other respects, the doctrine in Chandelor v.Lopus is adhered to, it has been held, nevertheless, that any representation of the thing sold, or direct affirmation of its quality and condition, showing an intention to warrant, is sufficient to amount to an express warranty. It was so decided in Chapman v. Murch, 19 Johns. 290, and in Swett v. Colgate, 20 Johns. 196. To the rule of construction laid down in these cases, it was objected by Chief Justice Gibson, who delivered a dissenting opinion in Borrekins v. Bevan, that such a principle would extend to loose conversations between the vendor and vendee, in which the vendor may praise his goods or express any opinion as to their qualities. But it is quite clear, I apprehend, that no such conversations or opinions would or could be construed as amounting to a warranty. No expression of an opinion, however strong, would import a warranty. But if the vendor, at the time of the sale, affirms a fact as to the essential qualities of his goods, in clear and definite language, and the purchaser buys on the faith of such affirmation, that, we think, is an express warranty." Where an alleged warranty is not found in a document or formal contract of the parties, but depends upon the construction of a series of letters and extrinsic circumstances, parol evidence is competent as to all the surrounding facts, what the parties said and what they did, the facts anterior to the contract, contemporaneous with the contract, and posterior to the contract; and it is for the jury to say whether, upon the whole evidence, they find any warranty. Stucley v. Baily, 1 H. & C. 420 (1862).