1. Claim for Breach of Warranty on Sale of an Engine.

1. On the 13th of October, 1879, the defendant sold to the plaintiff for the sum of £250, which the plaintiff then paid, an

He

(a) A warranty upon the sale of goods is either express or implied. It need not be in writing. Any representation as to the quality or description of the thing sold, which the person making it intended to be a warranty is a warranty, and if it is made at the time of the sale he is bound by it. is, however, only liable to the extent to which he has agreed to be liable, and therefore where on the sale of a horse the seller signed the following warranty: June 5, 1865. W. C. bought of W. G. G. a bay horse for £90, warranted sound, £90. G. G. Warranted sound for one month," it was held that the latter words limited the duration of the warranty and meant that the warranty was to continue in force for one month only, and that complaints of unsoundness must therefore be made by the purchaser within one month of the sale. (Chapman v. Gwyther, L. R. 1 Q. B. 463.) So when the plaintiff bought a horse by public auction at a repository, warranted to be a good worker, subject to the condition that "horses warranted good workers, whether sold. by private treaty or public auction, not answering such warranty must be returned before five o'clock of the day after the sale," and the horse was not returned within the stipulated time, the decision was, that the plaintiff's only remedy was under the condition, and that he could not sue generally on the warranty. (Hinchcliffe v. Barwick, 5 Ex. Div. 177; 49 L. J. Ex. 495.)

Warranty

need not be

in writing.

may

warrant.

Warranty by agent.]-An agent or servant employed to sell a thing When a has not generally an implied authority to warrant. (Brady v. Todd, 9 servant C. B. N. S. 592; 30 L. J. C. P. 223.) Quære in the case of a foreman alleged to be a general agent. (16.) It appears, however, that in the case of servants of horse-dealers they have such an implied authority, and their employers will be liable on a warranty given by them, even where there have been express directions not to warrant, unless they have notified that the general authority is limited. (Pickering v. Busk, 15 East, 45; Howard v. Sheward, L. R. 2 C. P. 148.) This doctrine does not apply to the case of an agent or servant of a person not a horsedealer entrusted with the sale of a horse on one particular occasion. (Brady v. Todd, supra.) An auctioneer entrusted with goods for sale by public auction has no implied authority from the vendor to warrant them. (Payne v. Lord Leconfield, 51 L. J. Q. B. 642.)

Where a thing is already sold a warranty given of its quality in con- A warranty sideration of the purchaser having bought is not binding, the considera- after the

sale not binding.

Generally no implied warranty of title.

When a person is liable who sells without title.

Warranty of quality.

Where

engine, and at the time of such sale warranted that it was then in good working order, and that its tubes were made of brass and copper.

2. The said engine was not then in good working order, nor were its tubes made of brass and copper.

The plaintiff claims £300 damages.

tion being executed, and therefore incapable of supporting any other promise than such as the law implies, and in such cases it only implies a promise to deliver on payment.

The material averments in a claim upon a warranty are: 1st, that the defendant warranted the particular article sold as being of a certain quality or description; and 2ndly, that at the time of sale it was not of the said quality or description. If special damage has resulted it must of course be set out. In an action for breach of warranty it is not necessary, nor, if the claim is upon a warranty merely, is it proper to aver that the defendant knew of the defect at the time he gave the warranty. If, however, the plaintiff puts his case alternatively, and relies upon a fraudulent misrepresentation as well as a warranty (as he may do when the evidence will bear him out) then the defendant's knowledge of the defect must be expressly alleged.

Implied warranties of title.]—The law in many cases implies a warranty from the mere fact of a sale.

If a man sells goods affirming them to be his own, that amounts to a warranty of title. But there is no implied warranty of title on the bare sale of a personal chattel. (Bagueley v. Hawley, L. R. 2 C. P. 625; Morley v. Attenborough, 3 Ex. 500.) The same holds on an exchange of chattels. (La Neuvelle v. Nourse, 3 Camp. 351.) To make the seller liable when it turns out he had no title, it must be shown that he was guilty of fraud in the transaction; and the concealment by the seller of defects in his title known to him amounts to fraud. (Early v. Garrett, 9 B. & C. 932.) Failing this it must be shown that there was an express warranty, or an equivalent to it, by his declarations or conduct; or that there was a usage of the particular trade by which such warranty is impliedly given. On the sale of goods in a shop kept professedly for their sale, there is an implied warranty that the purchaser has a right to sell the goods. In such a case the vendor sells the goods as his own, and that is equivalent to a warranty of title. (Per curiam in Morley v. Attenborough, supra.) The same holds with regard to goods sold in the defendant's warehouse. (Eichholtz v. Bannester, 17 C. B. N. S. 708; 34 L. J. C. P. 105.) It appears to be different with regard to unredeemed pledges sold at an auction by a pawnbroker. (Morley v. Attenborough, supra.) Or probably any auction (Bagueley v. Hawley, supra.) Where the plaintiff bought some goods from the defendant at an auction at which the defendant had himself purchased them, it was held that he could not recover the price paid for them as on a warranty of title. (Chapman v. Speller, 14 Q. B. 621.) An executory contract of sale of an unascertained chattel may import a warranty of title. (See per Park, B., Morley v. Attenborough, supra.) Where there is no warranty and the title proves bad, the purchaser may recover the price paid as upon a failure of consideration. (Morley v. Attenborough, supra.)

Implied warranty of quality.]—The following propositions were laid down in the judgment in Jones v. Just, L. R. 3 Q. B. 202, in which the authorities in support of them will be found :--

1. Where goods are in esse, and may be inspected by the buyer, and

Defence.

The defendant denies that he gave any warranty on the sale of the said engine.

emptor applies.

there is no fraud on the part of the seller, the maxim caveat emptor goods in applies, even though the defect is latent and not discoverable on exami- existence nation, at least where the seller is not the grower or manufacturer. the maxim This applies to the sale of meat in a meat-market as to which there is no caveat warranty that it is fit for human food. (Emerton v. Mathews, 31 L. J. Ex. 139; 7 H. & N. 586.) It also applies in the case of sale by sample if the latter truly represents the bulk. ́ (Smith v. Hughes, L. R. 6 Q. B. 597.) It would appear to be different where the goods are consigned under an agreement. Thus, where B., a wholesale provision dealer in London, contracted to send weekly from London by rail to W., a retail tradesman at Brighton, a quantity of Ostend rabbits, the cost of the railway carriage as well as the price of the rabbits being paid by W.: held that there was an implied warranty by B. that the rabbits should be fit for human food, not only when delivered at the railway station in London, but when in the ordinary course of transit they would reach W. at Brighton, and until he should have there a reasonable opportunity of dealing with them in the course of his business. (Beer v. Walker, 46 L. J. Q. B. 677.)

2. On the sale of a definite existing chattel specifically described, the actual condition of which may be ascertained, there is no implied warranty of quality.

3. Where a known, described, and defined article is ordered of a manufacturer, to whom it is stated to be for a particular purpose, on delivery by him of the article as known, described, and defined, there is no implied warranty by him that it will answer such purpose. (See judgment of majority of Court of Appeal in Robertson v. The Amazon Tug Co., 51 L. J. Ch. 68; 7 Q. B. Div. 598 ; in accordance with this principle.)

So where a known and defined article is bought.

will be implied,

4. But where a manufacturer or dealer contracts to supply an article When a which he manufactures or in which he deals to be applied to a particular warranty purpose, so that the buyer necessarily trusts to his skill or judgment, of quality there is in that case an implied warranty that it is reasonably fit for the purpose to which it is to be applied. This implied warranty is absolute, and extends to latent as well as discoverable defects. (Randall v. Newson, 2 Q. B. Div. 102: 46 L. J. C. P. 259 (C. A.) .) The considered judgment of the Court, delivered by Brett, L.J., in which all the cases on the subject are elaborately examined, should be carefully considered in this connection. In the above case, in consequence of the defendant's breach of an implied warranty that the pole of a carriage was fit for the purpose for which it was intended, the carriage was upset and considerable damage done. In granting a new trial the Court of Appeal intimated that the verdict should include such consequential damages as arose naturally from the defect in the pole as well as the value of the pole. (See also Hyman v. Nye, 6 Q. B. Div. 685.)

5. Where a manufacturer undertakes to supply goods manufactured by himself or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article.

6. Where the contract is to supply goods of a specified description which the buyer has not had the opportunity of inspecting, the goods must not only answer the description, but must be also merchantable or saleable under that description.

Implied warranty in the case of trade marks.

The

measure of damage.

2. Caim for Breach of Warranty on Sale of a Horse.

1. The defendant, on the 10th of March, 1880, sold a horse to the plaintiff for £70, which the plaintiff then paid, and upon such sale the defendant gave the following warranty :—

"The vendor (the defendant) warrants the said horse as quiet to ride and in harness, and free from all vice."

In Johnson v. Raylton, 7 Q. B. Div. 438, the majority of the Court of Appeal (Brett and Cotton, L.JJ., dissenting Bramwell. L.J.) held that on the sale of goods by the manufacturer, who is not otherwise a dealer in them, there is (in the absence of any usage in the particular trade, or, as regards the particular goods, to supply goods of other makers) an implied contract that the goods shall be those of the manufacturer's own make.

By the 25 & 26 Vict. c. 88 (Merchandise Marks Act. 1862), ss. 19, 20, on the sale or contract to sell (whether in writing or not), any article with any trade-mark on it, or on what it is contained in, or with any description or indication of the number, quality, measure, or weight, or of the place where it was manufactured or produced, there shall be deemed to have been a warranty of the genuineness of the trade-mark, or of the truth of the description, &c., unless the contrary shall have been expressed in writing, signed by or on behalf of the vendor, and delivered to or accepted by the vendee. And by sect. 22 a right of action is specially given to the person aggrieved by the forging or improper use of trade-marks.

A statement that the purchaser of an article must take it with all faults,” and that the vendor will give no warranty with it, and will refuse all further claim for compensation (when the vendor does nothing to conceal any defect), relieves the vendor from all liability in respect of any defect in the article itself; but if such a statement were followed by a declaration of the vendor (who knew the reverse) that he believed the article to be free from objection, that would probably ground an action for deceit. (Ward v. Hobbs, 4 App. Cas. 13.)

Damages.-The following decisions will probably be of use to the pleader in setting forth the claim for damages in this action :—

If the chattel has been returned and accepted, the plaintiff will be entitled to recover the whole price; if kept, the difference between the real value and the price; and if resold, the difference between what he gave defendant and the price on re-sale. (See Caswell v. Coure, 1 Taunt. 566.) This case related to a warranty of a horse, but the decision applies to other chattels, Where the defendants broke a warranty in not sending hemp that was merchantable, the plaintiff was held entitled to recover the difference between what the hemp was worth when it arrived and what the same hemp would have realised if it had been shipped in a proper state. (Jones v. Just, L. R. 3 Q. B. 197.) Where the purchaser of a horse with a warranty re-sold with a warranty, and, the horse proving unsound, was sued on his warranty, and gave the seller, the defendant, the option of defending, but on his failing to do so defended it himself, it was held that he was entitled to recover from him the costs of the action. (Lewis v. Peake, 7 Taunt. 153; and see Rolf v. Crouch, L. R. 3 Ex. 44; and Randall v. Newsom, supru.)

In actions on warranties of horses, the plaintiff may in some circumstances include a claim for their keep. If the vendee on discovering the defect, tenders the horse to the vendor, he may recover for keep for

2. The said horse was not at the said time quiet to ride and in harness, and was not free from vice, but was a jibber. The plaintiff claims £100 damages.

Defence.

1. It was a term of the said warranty that it was only to continue for one month from the sale, and that any horse which did not answer the warranty must be returned to the defendant's repository within the said month.

2. The said horse was not returned to the defendant's repository within the said month.

3. The said horse was at the time of the sale quiet to ride and in harness, and free from all vice.

Reply.

The plaintiff joins issue upon the defence.

3. Claim in Action for Breach of an implied Warranty. 1. In the month of October, 1880, the plaintiff purchased from the defendant for £5 a pole which the plaintiff stated at the time of the said purchase he required for his carriage.

2. The pole which the defendant supplied was not reasonably fit for the said purpose, and in consequence of some defect in it, snapped while in the plaintiff's carriage, and caused serious damage to the said carriage.

such time as would be required to sell him to the best advantage. (McKenzie v. Hancock, Ry,. & M. 436.) So where after notice that the horse may be taken away by the vendor, he is re-sold by the vendee, the vendor is liable for the cost of keep for a reasonable time. (Chesterman v. Lamb, 2 A. & E. 129.) When the vendor rescinds he is liable for the keep from date of contract to rescission. (King v. Price, 2 Chitty, 416.)

In an action for breach of warranty that a cow sold by the defendant Consewas free from disease, it was held that the plaintiff could recover for the quential loss of cattle to which the cow sold communicated the rinderpest. damages. (Smith v. Green, 45 L. J. 28.)

A breach of warranty when a specific chattel is sold does not entitle the purchaser to rescind the contract and return the chattel, and sue for a return of the price. It only entitles him to bring an action for the breach of warranty. (Street v. Blay, 2 B. & Ad. 456; Gompertz v. Denton, 1 C. & M. 207.) If in such a case the purchaser were sued for the price. he could counterclaim for damages for the breach of warranty, and he could also give the breach in evidence in mitigation of the plaintiff's claim.