With every contract of sale is the collateral agreement of warranty, which may be either express or implied, but since the warranty is always auxiliary to the main contract which transfers the title in the goods, whatever defeats the original contract, likewise terminates the contract of warranty. A warranty is to be distinguished from statements or representations which are the basis or inducement of the contract. A false representation may make the contract voidable, a breach or warranty could not affect the validity of the original contract. In other words, a warranty cannot exist without the original contract of which it is annexed,4 but the existence of the contract is not affected by the warranty.

The distinction between representation is well made in the well known old case of Hopkins vs. Tan-query.5 The defendant had sent a horse to a sale to be sold; before the horse was sold the plaintiff kneeled down and was examining the horse's legs; thereupon the defendant told the plaintiff that it was unnecessary, that the horse was perfectly sound in every way. The plaintiff desisted from further examination and said he was satisfied, and the following day, on the sale the plaintiff bought the horse, no warranty being made, but the plaintiff, acting on the representation of defendant previously made, bought the horse. The horse proving unsound, the plaintiff instituted this action. It was held that the statement made in reference to the horse's condition did not constitute a warranty, and further that the plaintiff could not recover since it appeared that the defendant acted in good faith.

2 Thorne vs. McVeagh, 75 I11., 81. 3 Holmes vs. Tyson, 147 Pa. St., 305, 15 L. R. A., 209.

4 Chanter vs. Hopkins, 4 Mees &

Wels, 404. 5 15 Com. B., 130.