isting fact in precisely the same way that a fraudulent misresentation must now be in order to furnish a basis for action. 8 At the present day it is law, nearly, if not quite, everywhere where the common law prevails, that any representation of fact as to the quality of the goods made for the apparent purpose of inducing the buyer to purchase them amounts to a warranty. A certain confusion has, indeed, been caused by a statement of Buller, J., in Pasley v. Freeman. That judge said, "It was rightly held by Holt, C. J., cited in the subsequent cases, and has been adopted ever since, that an affirmation at the time of a sale is a warranty provided it appears on evidence to have been so intended." In fact, in the decisions referred to, if the report may be trusted, Holt said nothing whatever about the necessity of intention; that requirement was interpolated by Buller himself. Many of the best courts in this country have in terms rejected any such requirement for making out an express warranty; and even in jurisdictions where the requirement of intention is still laid down, intent to warrant is not used as the equivalent of intent to contract: it means intent to affirm as a fact. 10 9 § 1505. Warranty may be, but need not be based on contract. There can be no doubt now, of course, that a seller may promise, in consideration of the purchase of goods from him, that he will be answerable for their present, or, indeed, for their future condition. Nor is it open to doubt that a seller who in terms warrants the goods which he sells, thereby enters into such a contract. But when a seller is held liable on a warranty $3 T. R. 51. Supra, § 971. 10 "In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment. In the former case it is a warranty, in the latter not." De Lassalle v. Guildford, [1901] 2 K. B. 215, 221. The statement was borrowed from Benjamin, Sales. It appears in the first and every subsequent edition (5th Eng. Ed. 659), and has also been approved by American courts Carleton v. Jenks, 80 Fed. 937, 26 C. C. A. 265; Roberts v. Applegate, 153 Ill. 210, 38 N. E. 676. It has, however, been disapproved by the House of Lords. Heilbut v. Buckleton, [1913] A. C. 30. A criticism of this decision showing its inconsistency with previous cases may be found in 27 Harv. L. Rev. 1. for making an affirmation of fact in regard to goods in order to induce their purchase, to hold that such an affirmation is a contract is to speak the language of pure fiction. In truth, the obligation imposed upon the seller in such a case is imposed upon him not by virtue of his agreement to assume it, but because of a rule of law applied irrespective of agreement. The obligation is quasi-contractual, inasmuch as the remedy of assumpsit is allowed for its enforcement. The confusion of thought as to the nature of the obligation seems to be in great measure due to the allowance in modern times of this remedy for breach of any warranty, whether in reality constituting a contract or only a representation. But assumpsit was not allowed as a remedy for breach of warranty until near the close of the eighteenth century. And a declaration in tort without an allegation of scienter is still generally regarded as permissible.12 The decisions so holding are not, as is sometimes supposed, a mere following of early authority after the reason for the earlier rule has ceased to exist; they involve a recognition of the fact that warranty is a hybrid between tort and contract. This was clearly recognized by Blackstone, 13 who classifies warranties with contracts "implied by reason and construction of law." Under this heading, together with warranties, he inserts a statement of such obligations as this: "If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest." 14 11 The first decision reported permitting it is Stuart v. Wilkins, 1 Doug. 18. 12 Shippen v. Bowen, 122 U. S. 575, citing Gresham v. Postan, 2 C. & P. 540; House v. Fort, 4 Blackf. (Ind.) 293, 295; Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 520, 18 Am. Dec. 317; Lassiter v. Ward, 11 Ired. L. (N. C.) 443, 444; Trice v. Cockran, 8 Gratt. (Va.) 442, 450, 56 Am. Dec. 151. To the same effect are Farrell v. Manhattan Market Co., 198 Mass. 271; Erie City Iron Works v. Barber, 106 Pa. St. 125; Place v. Merrill, 14 R. I. 578; Piche v. Robbins, 24 R. I. 325, 53 Atl. 92; Watson v. Jones, 41 Fla. 241, 25 So. 678; Tyler v. Moody, 111 Ky. 191, 63 S. W. 433, 54 L. R. A. 417, 98 Am. St. Rep. 406. See, however, the contrary decisions, Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401; Caldbeck v. Simanton, 82 Vt. 69, 71 Atl. 881, 20 L. R. A. (N. S.) 844; Slack v. Bragg, 83 Vt. 404, 76 Atl. 148; Pierce v. Carey, 37 Wis. 232. 56. 13 3 Comm. 163-165. 143 Bl. Comm. 164, citing 10 Rep. Nor is the law of sales the only place where express or implied innocent misrepresentations may impose liability as a warrantor on the party making them. A restaurant-keeper may on this principle be liable for furnishing poor food, 14 and one who hires building or construction work may make himself liable for the adequacy of the plans which he furnishes. 146 1506. Illustrations. To any one who still inclines to accept as fact the fiction of a contract where a warranty is based on a seller's misrepresentation of the quality of his goods, the argument may be put in this way. If it creates a contract for S to say of his horse when he sells it to B in order to induce the purchase, "the horse is sound," why is it not equally a contract if T should say precisely the same thing to B and thereby induce a sale of S's horse? If S's words to a buyer really mean "if you will buy my horse I undertake to be responsible for the truth of my assertion that the horse is sound," why does it not equally follow that if T should make similar statements to the buyer to induce the sale of S's horse that the same construction of an offer should be put upon them? A recent decision of the Supreme Court of South Carolina 15 furnishes an interesting comparison in this connection with the well-known case of Derry v. Peek. 16 In the latter case the plaintiff was induced to take shares in the company by a misrepresentation of the directors in regard to a right which they stated had been given by special act of Parliament to use steam or other mechanical motive power. In the South Carolina case the plaintiff was induced to buy shares of stock by representations of the seller as to the corporate assets and liabilities. It can hardly be thought that the representations in these two cases are to be distinguished on any other ground than that one was made by a seller, and the other by persons interested in the taking of shares by the plaintiff but not interested as sellers. As a pure question of construction of language, surely if the words in one case amount to an offer to contract, they do so in the other case. In truth, it is submitted 143 See supra, 996a. 14 See infra, § 1966. 15 Iler v. Jennings, 87 S. Car. 87, 68 S. E. 1041. 16 14 App. Cas. 337. they are not words of offer. The only reasonable inference that can be drawn in either case is that representations of fact were made for the purpose of inducing the plaintiff to purchase shares. In the American case it was held that scienter need not be alleged or proved, the court saying: "Use of a statement of the corporate business by a director negotiating a sale of his stock therein could not be regarded as other than a direct affirmation of its correctness, and, if it was delivered for the purpose of assuring the buyer of the truth of the facts therein stated, and to induce him to purchase, and the buyer purchases in reliance thereon, there is an express warranty." "The English case held that the directors were not liable because scienter was not proved; yet the English decisions on the law of warranty make it evident that the South Carolina Court was following clear English precedents. An honest misrepresentation, then, made by a seller to a buyer in regard to the title, kind or quality of goods in order to induce the sale, will render him liable.17a § 1507. Warranty by an agent of his authority. Entirely analogous to the law of warranty in the sale of goods is the warranty which the law imposes upon an agent that he is authorized to act as such. The agent either expressly, or by necessary implication of fact, represents that he is an authorized agent, and it was decided in Collen v. Wright 18 that the agent was liable as a warrantor. Cockburn, J., dissented from the decision of the court, and many legal thinkers have agreed with his dissent, on the ground that the plaintiff should not have been allowed to recover unless the agent knew of the falsity of his representations; but Collen v. Wright has been followed generally in the United States, 19 and has been affirmed recently by the House of Lords in England. 20 On this occasion the case of Derry v. Peek 21 was pressed upon the attention of the court and somewhat impatiently brushed aside by Lord Halsbury, who delivered the principal opinion, on the ground that Derry 17 87 S. Car. 87, 95, 68 S. E. 1041, 1044. 179 See supra, § 970. 18 7 E. & B. 301, 8 E. & B. 647. 19 See supra, § 282. 20 Starkey v. Bank of England, [1903] A. C. 114. 21 14 App. Cas. 337. v. Peek was an action for deceit and in the case at bar the action was contractual. But Lord Halsbury hardly asserted that the contract in such a case is other than a fiction of law imposed upon the agent because of his misrepresentation.22 Here again is a case where honest misrepresentation will render a person liable. In one respect, moreover, the doctrine in regard to an agent's warranty has been advanced by the late decision of the House of Lords beyond the analogy of warranty in the law of sales, and beyond the previous authority of Collen v. Wright. 23 The defendant in Starkey v. Bank of England 24 did not purport to enter into a contract on behalf of his principal with the injured plaintiff. The defendant was a stockbroker, and, as such, presented to the Bank of England, in good faith, at the request of a customer, a power of attorney purporting to be signed by the owner of certain consols, and thereby induced the bank to transfer the consols to a third person. In fact, one of the signatures on the power of attorney was forged. § 1508. Estoppel in pais. Another doctrine which must be considered in this connection is that of estoppel in pais. This doctrine, as now understood, precludes one who has made positive statements of fact to another, in reliance upon which the latter has acted, from denying their truth in any controversy between these two parties. That the misstatement shall have been either wilful or negligent is immaterial.25 The effect of Derry v. Peek 26 on the doctrine 22 "That which does enforce the liability is this-that under the circumstances of this document being presented to the bank for the purpose of being acted upon, and being acted upon on the representation that the agent had the authority of the principal, which he had not, that does import an obligation-the contract being for good consideration—an undertaking on the part of the agent that the thing which he represented to be genuine was genuine. That contains every element of warranty." [1903] A. C. 114, 118. This decision is interesting to compare with Heilbut v. Buckleton, [1913] A. C. 30, where the court held that a repre sentation by a seller in regard to the 23 7 E. & B. 301, 8 E. & B. 647. |