ture. The distinction between these two kinds of promises must be borne in mind, but in these pages the term "warranty" is not confined to its narrower meaning.

A warranty may be express or implied. An implied warranty necessarily forms part of the contract. An express warranty, also, must form part of the contract, unless it be given after the contract is entered into and is supported by new consideration. A subsequent warranty, not on a new consideration, is void.59

Inasmuch as, by the rules of evidence, when once a contract has been reduced to writing, the entire contract is deemed to be expressed in the instrument, parol evidence is inadmissible to prove a warranty where none is contained in the instrument, or to vary the terms of a warranty therein expressed.60 Of course this rule does not exclude such proof if the writing is not the contract, as where it is a mere receipt or bill of parcels. Nor does the fact that the contract has been reduced to writing necessarily exclude an implied warranty, if under the circumstances of the case such a warranty would otherwise

58 Congar v. Chamberlain, 14 Wis. 258; Porter v. Pool, 62 Ga. 238. 59 Roscorla v. Thomas, 3 Q. B. 234; Hogins v. Plympton, 11 Pick. (Mass.) 97; Summers v. Vaughan, 35 Ind. 323, 9 Am. Rep. 741; Morehouse v. Comstock, 42 Wis. 626; Aultman v. Kennedy, 33 Minn. 339, 23 N. W. 528; Manasquam Gravel Co. v. P. Sandford Ross, 73 N. J. Law, 506, 63 Atl. 1091. Cf. Blaess v. Nichols & Shepard Co., 115 Iowa, 373, 88 N. W. 829.

Co Kain v. Old, 2 Barn. & C. 627; Randall v. Rhodes, 1 Curt. (U. S.) 90, Fed. Cas. No. 11,556; Frost v. Blanchard, 97 Mass. 155; Merriam v. Field, 24 Wis. 640; Shepherd v. Gilroy, 46 Iowa, 193; Zimmerman Mfg. Co. v. Dolph, 104 Mich. 281, 62 N. W. 339; J. I. Case Plow Works v. Niles, 90 Wis. 590, 63 N. W. 1013; Vierling v. Furnace Co., 170 Ill. 189, 48 N. E. 1069; Seitz v. Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837; Buckstaff v. Russell, 79 Fed. 611, 25 C. C. A. 129; Rollins Engine Co. v. Forge Co., 73 N. H. 92, 59 Atl. 382, 68 L. R. A. 441; McNaughton v. Wahl, 99 Minn. 92, 108 N. W. 467; post, p. 265.

61 Allen v. Pink, 4 Mees. & W. 140; Atwater v. Clancy, 107 Mass. 369; Filkins v. Whyland, 24 N. Y. 33S; Irwin v. Thompson, 27 Kan. 643; Neal v. Flint, 88 Me. 72, 33 Atl. 669; Nauman v. Ullman, 102 Wis. 92, 78 N. W. 159 (conditional sale note); Potter v. Easton, 82 Minn. 247, 84 N. W. 1011.

arise.

Neither does an express warranty necessarily exclude an implied warranty."

Intention to Warrant.

65

No form of words is necessary to create a warranty." Nor, by weight of authority, is it necessary that the seller should have intended to warrant. Many decisions, indeed, do so require. Thus it was said in a Pennsylvania case: "Though to constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty of itself nor evidence of it. In connection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied, from the whole, that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions fairly importing a willingness to be bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it, for not to have exacted a direct engagement, had he desired to

62 Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548; Carleton v. Lombard, 149 N. Y. 137, 43 N. E. 422; Id., 149 N. Y. 601, 44 N. E. 1121; Cooper v. Payne, 103 App. Div. 118, 93 N. Y. Supp. 69; Elgin Jewelry Co. v. Estes & Dozier, 122 Ga. 807, 50 S. E. 939; Hooven & Allison Co. v. Wirtz (N. D.) 107 N. W. 1078. Cf. Lombard Water-Wheel Governor Co. v. Paper Co., 101 Me. 114, 63 Atl. 555, 6 L. R. A. (N. S.) 180.

63 Post, p. 265.

64 Chapman v. Murch, 19 Johns. (N. Y.) 290, 10 Am. Dec. 227; Shuman v. Heator (Neb.) 106 N. W. 1042.

In early times the word "warrant" or its equivalent appears to have been necessary. Chandelor v. Lopus, Cro. Jac. 4; 2 Harv. Law Rev. 9.

65 McFarland v. Newman, 9 Watts (Pa.) 55, 34 Am. Dec. 497; Holmes v. Tyson, 147 Pa. 305, 23 Atl. 564, 15 L. R. A. 209; Mahaffey v. Ferguson, 156 Pa. 156, 27 Atl. 21; House v. Fort, 4 Blackf. (Ind.) 294; Enger v. Dawley, 62 Vt. 164, 19 Atl. 478 (but see Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693); Kircher v. Conrad, 9 Mont. 191, 23 Pac. 74, 7 L. R. A. 471, 18 Am. St. Rep. 731. See also, Hopkins v. Tanqueray, 15 C. B. 130 (cf. Bannerman v. White, 10 C. B. N. S. 844); Pemberton v. Dean, 88 Minn. 60, 92 N. W. 478, 60 L. R. A. 331, 97 Am. St. Rep. 503.

66 McFarland v. Newman, supra.

buy on the vendor's judgment, must be counted an instance of folly." But other decisions hold with better reason that the question is, not whether the seller intended his affirmation as a warranty, but whether its natural tendency was to induce the buyer to purchase the goods, and whether he did purchase them in reliance upon it." "If the representation as to character or quality of the article sold be positive, and not mere matter of opinion, and the vendee understands it and relies upon it as a warranty, the vendor is bound thereby, no matter whether he intended it to be a warranty or not." 68 "He is responsible for the languages 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." "9

Fact or Opinion.

A statement of opinion or a mere commendatory expression will not amount to a warranty." 70 Whether a statement is an affirmation of fact, or whether it is simply a statement of opinion

67 Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 272, 16 Am. St. Rep. 753; Stroud v. Pierce, 6 Allen (Mass.) 413; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693; Kenner v. Harding, 85 Ill. 264, 268, 28 Am. Rep. 615; Ormsby v. Budd, 72 Iowa, 80, 33 N. W. 457; Murphy v. McGraw, 74 Mich. 318, 41 N. W. 917; McClintock v. Emick, 87 Ky. 160, 7 S. W. 903; Herron v. Dibrell, 87 Va. 289, 12 S. E. 674; Erskine v. Swanson, 45 Neb. 767, 64 N. W. 216; Huntington v. Lombard, 22 Wash. 202, 60 Pac. 414; Northwestern Lumber Co. v. Callendar, 36 Wash. 492, 79 Pac. 30; Harrigan v. Thresher Co., 81 S. W. 261, 26 Ky. Law Rep. 317.

The affirmation must be made in such manner and under such circumstances as to justify the buyer in believing that a warranty was intended. Zimmerman v. Morrow, 28 Minn. 367, 10 N. W. 139; Torkelson v. Jorgenson, 28 Minn. 383, 10 N. W. 416.

A warranty, if operative in inducing the sale, need not be the sole inducement. Mitchell v. Pinckney, 127 Iowa, 696, 104 N. W. 286. 68 Ingraham v. Railroad Co., 19 R. I. 356, 33 Atl. 875.

69 Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595.

70 Power v. Barham, 4 Adol. & E. 473; Henshaw v. Robins, 9 Metc. (Mass.) 83, 88, 43 Am. Dec. 367; Warren v. Coal Co., 83 Pa. 437, 440; Kenner v. Harding, 85 Ill. 264, 28 Am. Rep. 615; Robinson v. Harvey, 82 Ill. 58; Austin v. Nickerson, 21 Wis. 542, 543; Mason v. Chappell, 15 Grat. (Va.) 572, 583; James v. Bocage, 45 Ark. 284; Ragsdale v. Shipp, 108 Ga. 817, 34 S. E. 167; Quis v. Halloran, 74 App. Div.

or a commendatory expression, often depends on the nature of the sale and the circumstances of the case. "In determining whether there was in fact a warranty," said the court in a leading case, "the 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 there is a warranty; in the latter, not." "1 If the language is not unmistakable, the question is for the jury; though, if the warranty is contained in a written contract, the construction of the warranty is for the court.78 Of course, the question whether the language is unmistakable will be decided differently by different courts. Thus in a case where two pictures were sold at auction by a catalogue, in which one was said to be by Claude Lorraine, and the other by Teniers, Lord Kenyon held this no warranty that the pictures were genuine works of those masters, but merely an expression of opinion." But where the seller sold, by a bill of parcels, "four pictures,

72

621, 77 N. Y. Supp. 196; Shiretzki v. Julius Kessler & Co. (Ala.) 37 South. 422.

In the absence of fraud, a statement of quality, accompanied by refusal to warrant, is to be deemed an expression of opinion. Lynch v. Curfman, 65 Minn. 170, 68 N. W. 5.

Where the seller said that a mare was sound to the best of his knowledge, refusing to warrant, and he knew the mare to be unsound, it was held that there was a qualified warranty that she was sound to the best of his knowledge. Wood v. Smith, 5 Man. & R. 124. 71 Kenner v. Harding, 85 Ill. 264, 28 Am. Rep. 615. See, also, Pasley v. Freeman, 3 Term R. 57; Roberts v. Applegate, 153 Ill. 210, 38 N. E. 676 (cf. Eyers v. Haddem [C. C.] 70 Fed. 648).

72 Stucley v. Baily, 1 Hurl. & C. 405, 417, 31 Law J. Exch. 483; Power v. Barham, 4 Adol. & E. 473; Edwards v. Marcy, 2 Allen, (Mass.) 486, 490; Tuttle v. Brown, 4 Gray (Mass.) 457, 64 Am. Dec. 80; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Kingsley v. Johnson, 49 Conn. 462; Crenshaw v. Slye, 52 Md. 140; Claghorn v. Lingo, 62 Ala. 230; Thorne v. McVeagh, 75 Ill. 81; McDonald Mfg. Co. v. Thomas, 53 Iowa, 558, 5 N. W. 737; Erskine v. Swanson, 45 Neb. 767, 64 N. W. 216; Sauerman v. Simmons, 74 Ark. 563, 86 S. W. 429.

73 Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Rice v. Codman, 1 Allen (Mass.) 377, 380.

74 Jendwine v. Slade (1797) 2 Esp. 572.

views in Venice, Canaletti," it was left to the jury to say whether the seller meant to warrant them as genuine works of Canaletti, and Lord Denman distinguished the case from the preceding one by the suggestion that Canaletti was a comparatively modern painter of whose works it would be possible to make proof as a matter of fact, but that in the case of very old masters the assertion was necessarily matter of opinion." It would be beyond the scope of this book to consider in detail particular expressions which have been held to be warranties. Known Defects.

As a rule a general warranty is held not to extend to known defects or to defects apparent on a simple inspection." This rule rests on the presumed intention of the parties, who cannot be supposed the one to assert, and the other to rely on, the truth of what they know to be untrue. But the warranty may be so expressed as to protect the buyer against the consequences of patent defects, and an intention to include them will readily be inferred in doubtful cases, where the buyer may naturally prefer to rely on the warranty rather than on his own judgment."

75 Power v. Barham (1836) 4 Adol. & E. 473. Canaletti died in 1768, Claude Lorraine in 1682, and Teniers (the younger) in 1694. And see Lomi v. Tucker, 4 Car. & P. 15.

76 Butterfield v. Burroughs, 1 Salk. 211; Margetson v. Wright, 7 Bing. 603, 8 Bing. 454; Schuyler v. Russ, 2 Caines (N. Y.) 202; Bennett v. Buchan, 76 N. Y. 386; Hill v. North, 34 Vt. 604; Leavitt v. Fletcher, 60 N. H. 182; McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675; Ragsdale v. Shipp, 108 Ga. 817, 34 S. E. 167. The rule does not apply if the seller artificially conceals the objects from the buyer. Chadsey v. Greene, 24 Conn. 562; Kenner v. Harding, 85 Ill. 264, 28 Am. Rep. 615; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592; Scott v. Manufacturing Co., 70 Kan. 498, 78 Pac. 823; Id., 70 Kan. 500, 80 Pac. 955; Moore v. Koger, 113 Mo. App. 423, 87 S. W. 602.

77 Hill v. North, 34 Vt. 604; Brown v. Bigelow, 10 Allen (Mass.) 242; Shewalter v. Ford, 34 Miss. 417; Marshall v. Drawhorn, 27 Ga. 275, 279; McCormick v. Kelly, 28 Minn. 135, 138, 9 N. W. 675; Branson v. Turner, 77 Mo. 489; Watson v. Roode, 30 Neb. 264, 46 N. W. 491; Fitzgerald v. Evans, 49 Minn. 541, 52 N. W. 143; Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254.

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