such, relying upon that representation. To constitute a warranty, it is not necessary that the word "warranty" should be used. It is a general rule that whatever a seller represents, at the time of a sale, is a warranty. Wood v. Smith, 4 Car. & Payne, 45.

In Stone v. Denny, 4 Metc. (Mass.) 151, it is said that the courts in their later decisions "manifested a strong disposition to construe liberally, in favor of the vendee, the language used by the vendor in making any affirmation as to his goods, and have been disposed to treat such affirmations as warranties whenever the language would reasonably authorize the inference that the vendee so understood it." In Oneida Manuf. Society v. Lawrence, 4 Cow. 440, Chief Justice Savage says: "There is no particular phraseology necessary to constitute a warranty. The assertion or affirmation of a vendor concerning the article sold must be positive and unequivocal. It must be a representation which the vendee relies on, and which is understood by the parties as an absolute assertion, and not the expression of an opinion." And generally, where the representation is not in writing, the question of warranty is to be submitted to the jury. Duffee v. Mason, 8 Cow. 25.

It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the yendee, as a warranty. If the contract be in writing and it contains a clear warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares; and so if it be by parol, and the representation as to the character or quality of the article sold be positive, not mere matter of opinion or judgment, and the vendee understands it as a warranty, and he relies upon it and is induced by it, the vendor is bound by the warranty, no matter whether he intended it to be a warranty or not. He is responsible for the language he uses, and cannot escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee.

Here it is not questioned that the language used was sufficient to constitute a warranty that the article sold was sound and in good order; and why should it not as well extend to the character of the article? When a buyer purchases an article whose true character he cannot discover by any examination which it is practicable for him to make at the time, why may he not rely upon the positive representation of the seller as to its character as well as to its quality and condition? I can discover no distinction in principle in the two kinds of representation; and yet it is claimed in behalf of the plaintiff that there is a distinction, and certain cases are cited to uphold it, which I will proceed briefly to consider.

I therefore reach the conclusion, both upon principle and authority, that upon the facts of this case a jury might properly have inferred

that there was, upon the sale, a warranty that the article sold was blue vitriol. It was at least the duty of the court to have submitted the question of warranty to the jury. I think the facts were so clear and undisputed that the court could, without error, have decided, as a question of law, that there was a warranty, but this it is unnecessary to decide upon this appeal.

The only remaining question to be considered is, whether there was a breach of this warranty, and this can need but little discussion. The article sold, if it was known at all in market, was known by another It had only from seventeen to twenty-five per cent of blue vitriol in it. It was not an inferior article of blue vitriol, but a different substance with a small admixture of blue vitriol.

The judgment should therefore be reversed and a new trial granted, costs to abide event. All concur.

Judgment reversed. 13

HOBART v. YOUNG.

(Supreme Court of Vermont, 1891. 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693.) · Action to recover damages for deceit and full warranty in the sale of a horse.

The evidence of the plaintiff tended to show that in early June, 1888, he purchased a pair of horses, of which the horse in question was one; that he first saw these horses in May; that about the 1st of June he rode after them with the defendant; and that the defendant then warranted them to be sound. The plaintiff did not purchase them that day, but agreed with the defendant upon a price at which he could have them, and afterwards, on the 5th of June, sent his man Somers with a check and a bill of sale for them. The defendant received the check, and signed the bill of sale. The horses were delivered by the defendant's brother. Upon getting the horses home the plaintiff ascertained that one of them had a ringbone, which was the unsoundness complained of.

The bill of sale which the plaintiff signed was as follows: "Alburgh, June 5th, 1888. J. W. Hobart, bo't of Sumner Young, Esq., one pair of black (Pilot) geldings, sound and kind, $487.50; to be delivered on the cars at the depot with good halters, duties paid, and certificates of the same attached hereto. Rec'd. payment. S. Young." The court also instructed the jury that the plaintiff could recover if they found that the defendant warranted the horses upon the occasion when the plaintiff rode after them and agreed upon the price, about June 1st.14

ROWELL, J. *

It was not error to submit to the jury to find whether there was a verbal warranty on the 2d of June, the last

13 See Sales Act, § 12.

14 Part of the statement of facts and part of the opinion are omitted.

time plaintiff saw the horses before the purchase. Although he did not buy them that day, the price was then agreed upon at which he could have them. The testimony on the part of the plaintiff, ad.mitted without objection, presented two aspects as to warranty, namely, that of a verbal warranty on June 2d, and that of a written warranty on June 5th. The defendant denied both, and said that the bill of sale did not contain a warranty, and that if it did he was not bound by it because of the circumstances in which he signed the bill. No objection was made to the admission of the parol evidence as varying the written contract. In this posture of the case it was the duty of the court to submit both aspects of that question; for it is not necessary that representations, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that, they should be made during the course of the negotiations that lead to the bargain, and should then enter into the bargain as a part of it. Wilmot v. Hurd, 11 Wend. (N. Y.) 585; 2 Benj. Sales, (Corbin's Ed.) § 929.

An important question is whether the words "sound and kind," contained in the bill of sale, constitute an express warranty as matter of law. The law of warranty has undergone much change since Chandelor v. Lopus, Cro. Jac. 4, decided in the exchequer chamber in 1803. It was there held that an affirmation that the thing sold was a bezoarstone was no warranty; for, it was said, every one, in selling his wares, will affirm that they are good, or that the horse he sells is sound; yet, if he does not warrant them to be so, it is no cause of action. But latterly courts have manifested a strong disposition to construe liberally in favor of the purchaser what the seller affirms about the kind and quality of his goods, and have been disposed to treat such affirmations as warranties when the language will bear that construction, and it is fairly inferable that the purchaser so understood it. Stone v. Denny, 4 Metc. (Mass.) 155; Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595. And now any affirmation as to the kind or quality of the thing sold, not uttered as matter of communication, opinion, nor belief, made by the seller pending the treaty of sale, for the purpose of assuring the purchaser of the truth of the affirmation and of inducing him to make the purchase, if so received and relied upon by the purchaser, is deemed to be an express warranty. And in cases of oral contracts it is the province of the jury to decide, in view of all the circumstances attending the transaction, whether such a warranty exists or not. Foster v. Caldwell's Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Shippen v. Bowen, 122 U. S. 575, 7 Sup. Ct. 1283, 30 L. Ed. 1172.

But when the contract is in writing, it is for the court to construe it, and to decide whether it contains a warranty or not, (Wason v. Rowe, 16 Vt. 525;) and by the great weight of recent authority positive statements in instruments evidencing contracts of sale, descrip

tive of the kind, or assertive of the quality and condition of the thing sold, are treated as a part of the contract and regarded as warranties if the language is reasonably susceptible of that construction, and it is fairly inferable that the purchaser understood and relied upon it as such. Thus, in Hastings v. Lovering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420, the sale note described the article as "prime quality winter sperm oil." The plaintiff declared in assumpsit on a warranty, and had judgment. In Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367, the bill of particulars affirmed the article to be indigo. The court said that that imported an express warranty if it was so intended, and that it must be taken to have been so intended, as there was no evidence to the contrary. In Brown v. Bigelow, 10 Allen (Mass.) 242, a case exactly in point, these very words, "sound and kind,” were held to constitute a general warranty of soundness. In Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L.. R. A. 213, 14 Am. St. Rep. 455, a bought and sold note described the article as "Ceara scrap rubber as per sample, of second quality." The court said that it did not admit of doubt that the note was intended to express the terms of the sale, and that the contract of the parties was to be found in what was thus written, read in the light of the attendant circumstances. Held a warranty that the rubber was of second quality, and that the fact that the plaintiff made such examination of it as he pleased did not necessarily do away with the warranty.

Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317, is a leading case on this subject. There the bill of particulars contained a statement that the article was "winter-pressed sperm oil," and the question was whether those words were per se a warranty; and it was held that they were, for it was said they could not be regarded as mere matter of opinion or belief, but as the assertion of a material fact that the defendant assumed to know and to warrant the existence of. In Kearly v. Duncan, 1 Head (Tenn.) 397, 73 Am. Dec. 179, the words, "said negroes, sound in body and mind," contained in a receipt for the price paid for them, were held clearly to constitute a warranty of soundness. The words, "being of sound mind and limb, and free from all disease," in a bill of sale of slaves, were held a warranty in Cramer v. Bradshaw, 10 Johns. (N. Y.) 484. This case is criticised by Bennett, J., in Foster v. Caldwell's Estate, 18 Vt. 181, who would treat the words as a mere representation, descriptive of the property sold. But that case seems to have stood the test in New York, while Seixas v. Woods, 2 Caines, 48, 2 Am. Dec. 215, and Swett v. Colgate, 20 Johns. 203, 11 Am. Dec. 266, to which he refers, and which held that no warranty arises from a description of the kind of property sold, have been expressly overruled by Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595, as not properly applying the doctrine that they correctly announce, wherein a contrary applica-` tion is made, and wherein it is held that there is no distinction in

principle between a representation as to quality and condition and a representation as to kind and character. And in 1 Smith, Lead. Cas. (7th Amer. Ed.) 341, it is said that such a distinction is too refined to be practicable.

In Yates v. Pym, 6 Taunt. 446, a description of bacon in a sale note as "prime singed" was held to be a warranty that it was prime singed. So in Bridge v. Wain, 1 Starkie, 504, the goods sold were described in the invoice as "scarlet cuttings." Held a warranty that they answered the known mercantile description of scarlet cuttings. The advertisement of the sale of a ship described her as a "copperfastened vessel," whereas she was only partially copper-fastened, and not what was called in the trade a "copper-fastened vessel." Held a warranty that she was copper-fastened. Shepherd v. Kain, 5 Barn. & Ald. 240. A sold note described turnip seed as "Skirving's Swedes." Coleridge, J., said that there was no doubt that the statement was made by the defendant a part of the contract, and it was held to be a warranty that the seed was Skirving's. Allen v. Lake, 18 Q. B. 560. In Wetherill v. Neilson, 20 Pa. 448, 54 Am. Dec. 741, the bill of sale described the soda-ash as being of a certain strength, whereas it was of a less strength, and unmerchantable. Held no warranty. It is said in 1 Smith, Lead. Cas. (7th Amer. Ed.) 343, that this case stands almost, if not quite, alone, and cannot be reconciled with the general course of decisions in this country and in England.

In Barrett v. Hall, 1 Aikens (Vt.) 269, the note was payable in "good cooking-stoves." The court said that no definite quality could be intended from the term "good," and that it imported nothing but opinion, and was no warranty, and referred to Chandelor v. Lopus, Cro. Jac. 4, for authority, which is no longer authority. But we do not say that the court was wrong in that case, for "good" is a very common term of praise in trade, and as used in the note, ascribed no particular quality to the stoves, and might well be regarded, in that case, as mere matter of opinion or commendation, and as so understood by the parties. In Wason v. Rowe, 16 Vt. 525, the bill of sale said the horse was "considered sound." Held no warranty; and with good reason, for "considered" was no assertion of a fact, but a mere expression of opinion. The more recent cases in this state recognize the general rule that positive statements of fact by the seller in respect of the kind or the quality of the thing sold that constitute a part of the contract or form its basis, and that are fairly susceptible of such a construction, are to be regarded as warranties. Thus in Beals v. Olmstead, 24 Vt. 114, 58 Am. Dec. 150, one of the reasons given why the defendant's statements ought to be regarded as warranties is that they were made positively, and concerning matters as to which he was supposed and professed to have knowledge. Therefore, it is said, he ought to expect to be bound by them. See, also, Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122; Enger v. Dawley, 62 Vt. 164, 19 Atl. 478.