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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.

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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.

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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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FAIRMANER.

Spankie, Serjt., on the same side. If there had been no warranty added, the words, “a grey four-years old colt,” would have been clearly a warranty. The maxim,

expressum facit cessare tacitum," applies only where both warranties are of the same matter. But warranties are divisible; and in this case there is a division between the express and the implied warranties. The case of Gray v. Cox (a) is also in point.

TINDAL, C. J.-In this case there is a written instrument to shew the contract. We are to interpret according to the proper construction from the face of the instrument; and it appears to me that the intention was to confine the warranty to the soundness; and that what precedes the warranty is a description or representation only. What a man warrants, he must make good, whether he knew the fact or not. But for what he represents, if there is a latent defect, and he acts bona fide, he is not answerable. In the case of Parkinson v. Lee (6), Mr. Justice Lawrence draws the distinction between a warranty and a representation. In the present case, as it appears to me, the purchaser takes a warranty as to the soundness, and takes the age upon representation. As to the merits, there is different evidence with respect to the meaning of the term “ four years old,” it being in some cases rising four, and in others four off. I use this fact for the purpose of shew

(a) 6 D. & R 200; 4 B. & C. 108; and 1 C. & P. 184. “ If an article is sold for a particular purpose, and at the usual market price, and it turns out to be defective, an action is maintainable against the seller, though there was no warranty at the time of the sale." But see the observations there, as to the form of such action.

(6) 2 East, 314. That case decides, that upon a sale of hops by the sample, with a warranty that

the bulk of the commodity answered the sample, the law does not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price were given; and, therefore, if there be a latent defect unknown to the seller, arising from the fraud of the grower of whom he purchased, such seller is not answerable, though the hops turn out to be unmerchantable.

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v. FAIRMANER.

ing that the terms may have a varying construction; and, therefore, one part may be warranted, and the other not. The case of Browning v. Wright (a) shews the limitation of an express warranty. Shepherd v. Kain was decided on the ground that there was not any express warranty. Richardson v. Brown, and Dickinson v. Gapp, are directly in point. I am of opinion that the rule must be discharged.

GASELEE, J., concurred.

BOSANQUET, J.-We must construe this instrument according to the intention of the parties. Where a party sells by a sale note, he must sell such an article as the sale note expresses. So, in a policy, the introduction in the margin of the word “ American,” or “neutral,” may mean that it is intended to warrant those facts. What is the instrument in question? It is not a sale note, but a receipt given upon a sale. Can we infer from the terms used in the commencement of the receipt that there is a warranty as to the age? It seems to me, that Richardson v. Brown and Dickinson v. Gapp are decisive on this point.

ALDERSON, J.-As at present advised, if the word warranted had been the last word, I should have held that it extended to the whole. But here, I think it is confined to the soundness only.

Rule discharged (6).

(a) 2 Bos. & Pul. 13.

(6) See, in addition to the cases cited in the argument, Geddes v.

Pennington, 5 Dow, 164, and those
collected in Harrison's Index, Vol.
2, pp. 422 to 425.

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