The horse proved to be unsound, and there was evidence tending to show that the defendant knew it when he made the representations. Plaintiff sought to recover upon a warranty and also on the ground of fraud, and was permitted to do so. The court based its conclusions upon the ground of an express warranty made pending the treaty of sale by an affirmation of quality upon which the plaintiff was entitled to rely. The distinction between representation and warranty was not referred to, though the facts were such as would undoubtedly have sustained a recovery upon the ground of a false representation. § 1228. Not to be confused with time of warranting. The question is not to be confounded with that of the time when a warranty may be made, for, as will be seen,' the statement which constitutes the warranty may be made at the very beginning of the negotiation and at a considerable period before the contract is closed: the material question is, not when the representation was made, but whether it was designed by the parties to be a term in the contract. $1229. How determined. The determination whether a given statement is a representation or a warranty is usually a question for the jury, though it may be decided by the court if the facts are not in dispute.2 § 1230. How affected by usage.- If, under the rules of law, the statement is merely a representation, a local and special usage cannot convert it into a warranty.3 § 1231. Warranty to be distinguished from condition.Warranty is also to be distinguished from condition. Condition is a statement or promise which forms the basis of the contract, and a breach of it entitles the party relying upon it to treat 1See post, §§ 1235, 1240. 2 Kinley v. Fitzpatrick, 4 How. (Miss.) 59, 34 Am. Dec. 108; Bradford v. Bush, 10 Ala. 386; House v. Fort, 4 Blackf. (Ind.) 293; Baum v. Stevens 2 Ired. (N. C.) 411; Foggart v. Black weller, 4 id. 238; Morrill v. Wallace, 9 N. H. 111. 3 Wetherill v. Neilson (1853), 20 Pa. St. 448, 59 Am. Dec. 741, overruling Snowden v. Warder, 3 Rawle (Pa.), 101. the contract as at an end.1 Warranty, on the other hand, is, as has been seen, a collateral or subsidiary promise, the breach of which does not ordinarily terminate the contract, but gives rise merely to an action for damages. In practice, however, the distinction between warranty and condition, though clear enough when attended to, is frequently lost sight of, and, especially in the field of implied warranty, many elements of the contract which are really conditions are commonly designated warranties which the law implies.2 The practice leads to confusion, and has been often deprecated, but it seems to be too firmly rooted for extermination. § 1232. Warranty absolute or conditional. A warranty may be either absolute or conditional. It is usually the former, but there is no legal objection to making its operation and effect dependent upon a contingency or condition; and if this is done the warranty will be available only in the event specified. A common example of the conditional warranty is that found in many contracts for the sale of agricultural implements a subject hereafter more fully to be considered." § 1233. Classification of warranties.- Warranties are usually classified as express or implied; the former being those which the seller makes in terms, while the latter are those which the law implies from the nature or circumstances of the case. The most important of those which are said to be implied by law are warranties of title, quality, fitness, and genuineness. The subject will be considered in accordance with this classification. II. EXPRESS WARRANTIES. § 1234. Express warranty defined.- An express warranty, in the sense in which those words are here used, is to be dis 1 See ante, § 1218. 2 See post, § 1295 et seq. 3 See Bomberger v. Griener, 18 Iowa, 477, and cases cited in §§ 1383, 1384, post. 4 See § 1383, post. tinguished from the warranties implied by law and hereafter to be considered. The latter are obligations arising largely from mere implication of law; the former is one which arises from the declarations and conduct of the parties. An express warranty, therefore, is a direct and positive affirmation or assertion made by the seller, as part of the contract of sale, relating to some matter of fact respecting the title, quality, character or condition of the thing sold, under such circumstances that it may fairly be regarded by the buyer as a promise or undertaking on the part of the seller that the fact is as he so affirms or asserts, and which the buyer relies upon as such in making the purchase.❜ § 1235. What constitutes a warranty-Any direct and positive affirmation. In order to constitute an express warranty no particular language is necessary. It is not required that it shall be in writing, or be made in specific terms; and it is not at all necessary that the word "warrant " or "warranty" shall be used. Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during the treaty of sale and as a part of the contract, designed by him to induce the action of the purchaser and actually, to some extent at least, relied upon by the latter in making the purchase, will be deemed to 1 See post, § 1295. kine v. Swanson (1895), 45 Neb. 767, 2 See the cases cited in the follow- 64 N. W. R. 216; Money v. Fisher ing sections. (1895), 92 Hun (N. Y.), 347; Robinson v. Harvey (1876), 82 Ill. 58; Polhemus v. Heiman (1873), 45 Cal. 573; Austin v. Nickerson (1867), 21 Wis. 549. 3 Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. R. 372, 16 Am. St. R. 753; Switzer v. Pinconning Mfg. Co., 59 Mich. 488, 26 N. W. R. 762; Latham v. Shipley, 86 Iowa, 543, 53 N. W. R. 342; Callanan v. Brown, 31 Iowa, 333; Jack v. Railroad Co., 53 Iowa, 399, 5 N. W. R. 537; Reed v. Hastings, 61 Ill. 266; Henshaw v. Rob ins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Warren v. Philadelphia Coal Co., 83 Pa. St. 437; Osgood v. Lewis, 2 H. & G. (Md.) 495, 18 Am. Dec. 317; Ers 4 Reliance upon the warranty is indispensable to a recovery upon it. Richardson v. Coffman, 87 Iowa, 121, 54 N. W. R. 356 [citing Tewkesbury v. Bennett, 31 Iowa, 83; McGrew v. Forsythe, 31 Iowa, 181; Jackson v. Mott, 76 Iowa, 265, 41 N. W. R. 12; McDonald Mfg. Co. v. Thomas, 53 Iowa, 560, 5 N. W. R. 737: Figge v. Hill, 61 Iowa, 430, 16 N. W. R. 339]; Deyo v. Ham be a warranty. Following this principle more fully into details, it may be noticed that § 1236. Direct assertions or positive representations as to title, quality or condition, express stipulations concerning the description of the goods, explicit declarations that the negotiations are conditioned upon the existence of given attributes, capacities or characteristics,2 and the like, are a few of mond (1894), 102 Mich. 122, 60 N. W. R. 455; though it need not constitute the sole reliance. Shordan v. Kyler (1882), 87 Ind. 38. Plaintiff need not testify directly that he relied upon it; whether he did so or not is a question for the jury. Way v. Martin, 140 Pa. St. 499, 21 Atl. R. 428; Wilmot v. Hurd, 11 Wend. (N. Y.) 584; Dake Engine Mfg. Co. v. Hurley, 99 Mich. 16, 57 N. W. R. 1044. 1 Fairbank Canning Co. v. Metzger, supra; Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. R. 595; Drew v. Edmunds, 60 Vt. 401, 15 Atl. R. 100, 6 Am. St. R. 122; McLennan v. Ohmen, 75 Cal. 558, 17 Pac. R. 687; Polhemus v. Heinman, 45 Cal. 573; McKinnon v. McIntosh, 98 N. C. 89, 3 S. E. R. 840; Horton v. Green, 66 N. C. 596; Lewis v. Rountree, 78 N. C. 323; Powell v. Chittick, 89 Iowa, 513, 56 N. W. R. 652; Barnes v. Burns, 81 Wis. 232, 51 N. W. R. 419; White v. Stelloh, 74 Wis. 435, 43 N. W. R. 99; Neave v. Arntz, 56 Wis. 174, 14 N. W. R. 41; Smith v. Justice, 13 Wis. 600; Hahn v. Doolittle, 18 Wis. 196, 86 Am. Dec. 757; Austin v. Nickerson, 21 Wis. 542; Giffert v. West. 33 Wis. 617; Elkins v. Kenyon, 34 Wis. 93; Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Chapman v. Murch, 19 Johns. (N. Y.), 290, 10 Am. Dec. 227; Swett v. Colgate, 20 Johns. 196, 11 Am. Dec. 266; Mason v. Chappell, 15 Gratt. (Va.) 572; Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Lamme v. Gregg, 1 Metc. (Ky.) 444, 71 Am. Dec. 489; Osgood v. Lewis, 2 H. & G. (Md.) 495, 18 Am. Dec. 317; Shippen v. Bowen, 122 U. S. 575, 30 L. ed. 1172; Weimer v. Clement, 37 Pa. St. 147; Murphy v. Gay, 37 Mo. 535; Carondelet Iron Works v. Moore, 78 Ill. 65; Reese v. Bates (1897), 94 Va. 321, 26 S. E. R. 865; Burr v. Redhead, etc. Co. (1897), 52 Neb. 617, 72 N. W. R. 1038; McClintock v. Emick (1888), 87 Ky. 160, 7 S. W. R. 903; Herron v. Dibrell (1891), 87 Va. 289, 12 S. E. R. 674; Hobart v. Young, 63 Vt. 363, 21 Atl. R. 612, 12 L. R. A. 693. 2 It will be found in later sections (post, § 1333) that the description of the goods may raise an implied warranty of conformity; but there can be no question that conformity to description may also become the matter of an express warranty. Thus in Groetzinger v. Kann, 165 Pa. St. 578, 30 Atl. R. 1043, 44 Am. St. R. 676, sellers wrote to buyers offering to sell leather, and saying "Our leather is now thoroughly tanned." Buyers replied: “If your leather is thoroughly tanned now, and all right in other respects, we will take," etc. Held to amount to an express warranty that the leather was thoroughly tanned. (The court cited and relied upon Philadelphia Iron Co. v. Hoffman, Pa. St. -9 4 Atl. R. 848, where a stipulation for sale and the many illustrations furnished by the cases of the affirmations constituting express warranties within the foregoing rule. § 1237. Intention to warrant.-It is not necessary, according to the clear weight of authority, that the seller shall actually have intended his representation to be a warranty.1 If he delivery of iron "strictly neutral" was held an express warranty; and Halloway v. Jacoby, 120 Pa. St. 583, 15 Atl. R. 487, 6 Am. St. R. 737, where an order was given for corn, "provided it is good, salable corn," and the order was accepted generally, and it was held that there was a warranty that it was corn of the kind described; and Holt v. Pie, 120 Pa. St. 425, 14 Atl. R. 389; and Pratt v. Paules, Pa. St. —, 4 Atl. R. 751, where an order which was accepted specified that the goods should be of a certain quality, and it was held that there was an express warranty that they were of that quality.) Many other cases hold, and rightly, that direct and positive assertions concerning the description of the article, and also words of description in bills of sale, bills of parcels, broker's notes, and the like, constitute express warranties that the goods conform to the description. Osgood v. Lewis, 2 H. & G. (Md.) 495, 18 Am. Dec. 317, where a statement in a bill of parcels of a quantity of oil that it was "winter-pressed sperm oil was held an express warranty that such oil was winter pressed: and in Yates v. Pym, 6 Taunt. 446, the description in a sale note of the goods as "prime singed bacon" was held an express warranty that it was such; and Shepherd v. Kain, 5 B. & Ald. 240, where a statement in an advertisement of a ship that she was "copper-fastened" was held to amount to an ex press warranty that she was so; and in Love v. Miller, 104 N. C. 582, 10 S. E. R. 685, where there was a sale of cotton "to be of the average grade of middling," it was held that this was a warranty that the cotton was of such grade in fact, and not merely that it was so according to any particular method of inspection. 1 There are, it is true, many cases which hold, or at least assert, that the seller's representations cannot be deemed to be a warranty unless he intended that they should be so considered, or, as it is put in Pennsylvania by Chief Justice Gibson (in McFarland v. Newman (1839), 9 Watts (Pa.), 55, 34 Am. Dec. 497), unless the jury are "satisfied from the whole that the vendor actually and not constructively consented to be bound for the truth of his representation." This idea seems to have been continued in the Pennsylvania cases. Thus in Hexter v. Bast (1889), 125 Pa. St. 52, 17 Atl. R. 252, 11 Am. St. R. 874, it is said of a warranty that "no special form of words is necessary to create it; an affirmation at the time of the sale is sufficient, provided it was so intended." The same view prevailed at an early day in Vermont, but this view has been subsequently modified. Thus in Enger v. Dawley (1890), 62 Vt. 164, 19 Atl. R. 478, it is said: "To constitute a representation a warranty, it must have been so intended and understood by the parties, both |