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1831.

BUDD

FAIRMANER.

From the evidence of several veterinary surgeons it appeared, that, on the 4th of August, 1830, when the colt was sold, it was only a three years old, and could not be strictly called a four years old till the 1st of May, 1831; but they admitted, on cross-examination, that by four years old was sometimes meant three off or rising four, and sometimes four off or rising five. They said also, that till it was actually four years old, it was not suitable for a carriage horse, as which it appeared the plaintiff meant to

use it.

Andrews, Serjt., for the defendant, contended that the plaintiff must be nonsuited, as there was no evidence of any warranty that the colt was a four years old colt: the warranty, according to the terms of the receipt, being confined to the soundness; and the other part being description only. He referred to Richardson v. Brown (a).

Wilde, Serjt., for the plaintiff.—The case of Richardson v. Brown is distinguishable from the present, as there the warranty was separate from the rest of the contract. There are numerous cases which shew that where a man sells an article of a given description, he warrants it to be of that description (6).

TINDAL, C. J.-I am of opinion that the first part of the receipt contains a representation, and the latter part a warranty. In the case of a representation, to render liable the party making it, the facts stated must be untrue to his knowledge; but in the case of a warranty, he is liable whether they are within his knowledge or not (c). The plain

(a) 1 Bing. 344; and 8 J. B. Moore, 338. The words relied upon in that case were, “To be sold, a black gelding five years old, bas been constantly driven in the plough-Warranted.” And it

was held that the warranty was
only of soundness.

(6) Vide the cases referred to
in the argument in banc.

(c) Vide Salmon v. Ward, Vol. 2 of these Reports, p. 211.

1831.

tiff has not made out his case as stated in the declaration, and therefore he must be called.

Nonsuit.

BUDD

FAIRMANER.

Wilde and Spankie, Serjts., and Kelly, for the plaintiff.

Andrews and Russell, Serjts., and Erle, for the defendant.

[Attornies--Sylvester & W., and D. Willoughby.]

In the ensuing Michaelmas Term, Wilde, Serjt., obtained a rule nisi for setting aside the nonsuit. He cited on the motion the cases of Gardiner v. Gray (a); Bridge v. Wain (6); and Yeates v. Pim (c).

Nov. 13th.

On a subsequent day in the term, Andrews, Serjt., shewed cause. — The nonsuit was right. The language of the receipt is decisive, it warrants the soundness only. In moving for this rule it was argued, that every representation amounts to a warranty.

But the cases cited do not

(a) 4 Camp. 144. That case of scarlet cuttings. decides, that where, before or at (c) 2 Marsh. 141; 6 Taunt. 446; the time of sale, a specimen of the Holt, 95. That case decides that goods is exhibited to the buyer, if an usage of trade cannot be set up there be a written contract, which in contravention of an express merely describes the goods as of a contract. It was a case in which particular denomination, this is A. agreed to sell to B. a quantity not a sale by sample; but there is of prime singed bacon, which B. an implied warranty that the goods weighed and examined and paid shall be of a merchantable quality for by a bill at two months, but beof the denomination mentioned in fore the bill became due, he gave the contract.

notice to A. that the bacon did not (6) 1 Stark. N. P. C. 504. That answer the contract. And it was case decided that where goods held that B. could not give in eviwere described in the invoice as dence a custom that the buyer was scarlet cuttings, a warranty was bound to reject the contract, if at to be inferred that they answered all, at the time of examining the the known mercantile description goods.

1831.

BUDD

FAIRMANER.

bear out that position. As to Gardiner v. Gray, that was the case of waste silk in a sale note, which turned out not to be marketable; and it was held, that it ought to have been. With respect to Bridge v. Wain, the case of the scarlet cuttings, the cuttings differed much, some being marketable and others not, and a warranty of their being marketable was implied. In the case of Yeates v. Pim, which related to prime singed bacon, it was only held that no custom of trade could be set up in contradiction of a written description. But this case turns upon the words of the receipt. Richardson v. Brown is in point, in our favour. There was also a case of Dickinson v. Gapp, tried in the Common Pleas, at the adjourned sittings in London after Hilary Term, 1821, in which the receipt given was in these words:" September 7th, 1820, Received of Robert Dickinson 1001., for a bay gelding, got by Cheshire Cheese, and warranted sound.” According to the evidence, it appeared that the gelding was not got by Cheshire Cheese, but the defendant believed that it had been. Dallas, C. J., held that it was a representation merely, and that the warranty was confined to the soundness. That case is precisely in point with the present. The cases of Jendwine v. Slade (a), and Williamson v. Allison (b), go to shew that a representation does not bind, unless it is known to be false. With respect to the colt's being useful or not, that was a matter which both parties could judge of.

ALDERSON, J.-Where a vessel was sold as a copper fastened vessel, to be taken with all faults, and it turned out not to be copper fastened, it was held that the warranty was broken.

Andrews, Serjt.—The written receipt shews clearly what the intention was.

(a) 2 Esp. 572. That case decides, that the putting down the name of an old artist in a catalogue as the painter of a particular

VOL. y.

picture, is not such a warranty as
will subject the seller to an action.

(6) 2 East, 446.

G

1831.

BUDD

FAIRMANER.

Russell, Serjt., on the same side.- The cases of Gardiner v. Gray, and Yeates v. Pim, were cases of a general contract to supply an article of a given description; and it was held, that the article supplied must answer that description. Those decisions only shew that a purchaser is entitled to an article which is saleable in the market, according to the description given. But in this case there is an express warranty as to the part intended to be warranted. The principle to be extracted from Dunlop v. Waugh(a), and Jendwine v. Slade, as applicable to this case, is, that what a man says about the age of a horse at the time of the sale, may be information given according to his belief only. The receipt shews the warranty to be confined to soundness. According to the evidence of Mr. Sewell, at the trial, it appears that the phrase “ four years old" varies in its meaning.

ALDERSON, J.--Unless it were sold on its birth day it never could be sold as exactly four years old.

Wilde, Serjt., in support of the rule.—I mean to contend, that this is a warranty that the colt was a grey four years old colt. If a man sells a horse as an entire horse, or as a mare or a gelding, has not the purchaser a right to claim a horse answering the description? The colt was bought to match, and it was bought also for use. Now, if it was not grey it would not match, and if it was not four years old, it was too young for use. Supposing it to be a running horse, the age would be of importance. If the word “warranted” was not used, would not the description amount to a warranty? No particular words are necessary to constitute a warranty. The cases as to scarlet cuttings and waste silk were cited, not to shew that the things must be

(a) Peake, N. P. C. 123. That case decides, that “it is not a warranty to sell a horse as of the age stated in a written pedigree, if at

the time the seller declared that he knew nothing of the horse's age, but what he learned from the written pedigree."

1831.

BUDD

v. FAIRMANER.

marketable, but that they must answer their description. The words," Riga hemp” and “Prime yellow Dantzic tallow," have been held to amount to a warranty. What would otherwise amount to a warranty may be cut down by something subsequent; but it must be something relating to the same matter, and not to a wholly different matter. Where words amount to a warranty, and afterwards there is an express warranty, the implied warranty will not be cut down thereby. Selling a thing as of a given description, is a warranty that it is of that description. If a horse is sold as “ a perfect horse, warranted sound," because he is warranted sound he is not to be the less a perfect horse. The description in this case is of a four years old colt; and the mention of the age at all shews that it was material. With respect to ships, if a ship be stated to be “ American,” or “ copper-fastened," that description will not be affected by a subsequent watranty to sail before a given day. The word “ American” might imply a warranty of neutrality, and so become material.

ALDERSON, J.-A warranty must be complied with, whether it is material or not; but it is otherwise as to a representation.

Wilde, Serjt.— The case of Shepherd v. Kain (a), is important in my favour, for there a ship was sold " as a copper-fastened vessel,” but it was to be taken with all faults; and yet it was held that the purchaser had a right, under those words, to have a vessel entirely copperfastened.

(a) 5 B. & A. 240. According appeared that the ship was only to that case, where an advertise- partially copper-fastened, it was ment for the sale of a ship describ- held, that the description amounted it as “a copper-fastened vessel,” ed to a warranty, and that the venadding, that it was to be taken with dor was liable as for a breach of it, all faults, without any allowance notwithstandingthe words “ with for any defects whatsoever; and it all faults,” &c.

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