1 Winsor v. Lombard, 18 Pick. 60; Shepherd v. Kain, 5 B. & Al. 240; Hastings v. Lovering, 2 Pick. 214; Henshaw v. Robins, 9 Met. 83; Hazard v. Irwin, 18 Pick. 95; Budd v. Fairmaner, 8 Bing. 51.
2 Doggett v. Emerson, 3 Story, 732. In this case Mr. Justice Story said: "It appears to me that it is high time that the principles of courts of equity upon the subject of sales and purchases should be better understood, and more rigidly enforced in the community. It is equally promotive of sound morals, fair dealing, and public justice and policy, that every vendor should distinctly comprehend, not only that good faith should reign over all his conduct in relation to the sale, but that there should be the most scrupulous good faith, an exalted honesty, or, as it is often felicitously expressed, existing (and not otherwise), to the seller, whereby the latter sustains damage by trusting the purchaser on the credit of such misrepresentation; and this doctrine, though formerly opposed, has been repeatedly affirmed in the English and American jurisprudence.1 Thus, where a contract for the delivery of livestock at a distant place would have been fulfilled but for the false and fraudulent representations of a third person (the defendant), that the plaintiff had abandoned all intention of fulfilling it, in consequence of which the plaintiff, having come to the stipulated place with the drove, found that the bargainee had been supplied by the defendant, and incurred great expense and loss of time in disposing of it elsewhere; it was held, that an action would lie against the defendant, although the contract to deliver could not have been enforced against the plaintiff by action.2 But this rule only applies to cases where the representation by a third person is known by him to be false, since otherwise it can only have weight as an expression of opinion; for if it appear to have been made by him bona fide, he will not be liable, although it prove to be unfounded.3 Thus, where the defendant, being consulted in relation to the credit of a third person, who had applied to the plaintiff to deal with him, stated that he knew of his own knowledge that the party might be safely credited, and the plaintiff thereupon trusted him, and suffered a large loss in consequence, it was held that this statement of the defendant was only to be taken as a strong expression of confidence in the solvency of the party, and, as it was bond fide, did not render him liable.4
"Sold 2000 gallons prime quality winter oil," it was held, that, this being a misrepresentation as to a matter of fact, of the truth of which the seller might easily inform himself, it constituted a warranty which he was bound to make good.1
§ 640. If, however, the bill of parcels or memorandum of sale in which the subject-matter is described also contain an express warranty as to particular qualities, and the warranty does not fail, the buyer must show that the description was false within the knowledge of the seller, to entitle him to recover. For an express warranty as to particular facts or qualities is considered as an implied exclusion of warranty as to every other fact or quality; according to the maxim, "Expres-8to unius est exclusio alterius"2 Thus, where a receipt was given in the following words, "Rec'd of A. D., £10 for a gray four-year-old colt, warranted sound," and the colt proved to be sound, but more than four years old, it was held, that the buyer could not recover for such falsity of description, without showing that the seller wilfully misled him, since the description was evidently intended as identification.3 But where the uberrima fides, in every representation made by him as an inducement to the sale. He should, literally, in his representation, tell the truth, the whole truth, and nothing but the truth. If his representation is false in any one substantial circumstance going to the inducement or essence of the bargain, and the vendee is thereby misled, the sale is voidable; and it is usually immaterial whether the representation be wilfully and designedly false, or ignorantly or negligently untrue. The vendor acts at his peril, and is bound by every syllable he utters, or proclaims, or knowingly impresses upon the vendee, as a lure or decisive motive for the bargain. And I cannot but believe, if this doctrine of law had been steadfastly kept in view, and fairly upheld by public opinion, the various speculations, which have been so sad a reproach to our country, would have been greatly averted, if not entirely suppressed, by its salutary operation."
1 Winsor v. Lombard, 18 Pick. 60. See Fraley v. Bispham, 10 Barr, 320; Richmond Trading Co. v. Farquar, 8 Blackf. 89; Osgood v. Lewis, 2 Harr. & Gill, 495; Lamb v. Crafts, 12 Met. 353; Wason v. Howe, 16 Vt 527.
2 Budd v. Fairmaner, 8 Bing. 51; Richardson v. Brown, 1 Bing. 344.
3 Budd v. Fairmaner, 8 Bing. 51. In this case, Tindal, C. J., said: "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, memorandum, or receipt, or bill of parcels contains no express warranty, the description itself creates an implied warwarranted sound.1 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 the difference is most essential. Whatever a party warrants, he is bound to make good to the letter of the warranty, whether the quality warranted be material or not; it is only necessary for the buyer to show that the article is not according to the warranty; whereas, if an article be sold by description merely, and the buyer afterwards discovers a latent defect, he must go farther, allege the scienter, and show that the description was false within the knowledge of the seller. And where there is an express warranty as to any single point, the law does not beyond that raise an implied warranty that the commodity sold shall be also merchantable. Therefore, in Parkinson v. Lee, 2 East, 313, upon a sale of hops by sample, with a warranty that the bulk of the commodity answered the sample, although a fair merchantable price was given, it was held that the seller was not responsible for a latent defect, unknown to him, but arising from the fraud of the grower from whom he purchased. 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. Many cases have been referred to, and some stress has been laid on the effect of the word dedi when contained in a grant; but, according to Lord Eldon, in Browning v. Wright, 2 Bos. & Pul. 21, words of that nature 'import a contract in law, the effect and mean- • ing of which would be affected by the subsequent words of the indenture;' and in the cases relied on for the plaintiff, the sellers had delivered commodities essentially different from those which they had professed to sell." It will be observed that this case is purely one of interpretation, and the doctrine as to description would seem to be intended to be confined to cases where there is a distinction made by the parties between the description and the warranty, like that which was before the court. The ground of the court will be more evident from the opinions of Mr. Justice Bosanquet and Mr. Justice Alderson, who both treat the case as proceeding upon a manifest intention on the part of the vendor, as expressed in the memorandum, to distinguish between what he was willing to warrant, and what was mere description. The former says: "In every case where the contract appears on a written instrument, the instrument must be construed according to the intent of the parties. As, where the dealing is by a contract note, the article delivered must agree with the terms of the note; or, where a ship is insured, it must correspond with the warranties contained in the policy. What is the instrument here ? Not a contract of sale, but a mere receipt, describing an ranty, and the buyer is not bound to prove wilful fraud.1 In the former case, the seller is understood to say, "I will warrant that the subject-matter has certain qualities, but I will not warrant that it has any others." In the latter case he is considered, by implication, as saying, "I undertake to pledge myself that the subject-matter is what I describe it to be."