WARRANTY DISTINGUISHED FROM REPRESENTATION. 139 



and was also laid down by Chief Justice Best, in the fol- 

 lowing case. An action of Assumpsit was brought on the 

 Warranty of a Horse ; no direct evidence was given of 

 what took place when the contract was made, but letters 

 passed between the x^laintiff and defendant, in which the 

 plaintiff writes, " You well remember that you represented 

 the Horse to me as five years old ;" to which the de- 

 fendant answers, " The Horse is as I represented it." 

 Chief Justice Best said, " The question is, whether I and 

 the Jury can collect that a "Warranty took place ; I quite 

 agree that there is a difference between a Warranty and a 

 Representation, because a Representation must be loioicn to 

 be wrong. The plaintiff in his letter says, ' You remember 

 you represented the Horse to me as five years old.' To 

 which the defendant's answer is, ' The Horse is as I 

 represented it.' Now if the Jury find that this occurred 

 at the time of sale, and without any qualification, then I 

 am of opinion that it is a Warranty. If it occurred 

 before, or if it was qualified, then it must be taken to be a 

 Representation and not a Warranty." His Lordship then 

 left the question to the Jury, telling them " that if they 

 found that the defendant at the sale gave an undertaking 

 to the effect mentioned in the letters, then such under- 

 taking was a Warrant)/.''^ The Jury returned a verdict 

 •for the plaintiff {e). 



A Eepresentation to amount to a Warranty must be Where a Re- 

 shown not only to have been intended to form part of amountfto'i 

 the contract, but also to have been made pending the WaiTanty. 

 contract. And therefore where A. sent his Horse to 

 Tattersall's for sale by auction without Warranty, and 

 on the day before the sale found B. in the stable exa- 

 mining the Horse's legs, and A. said to him, " You have 

 nothing to look for; I assm^e you he is perfectly sound 

 in every respect;" whereupon B. replied, "If you say so, 

 I am perfectly satisfied." Upon the faith of this repre- 

 sentation (admitted to have been made in good faith) B. 

 became the purchaser. It was held that this was no 

 Warranty, as this representation was not intended to form 

 part of the contract of sale, nor was it made pending the 

 contract. For the sale being by auction, the negotiations 

 between the parties had not commenced, inasmuch as the 

 contract began only when the Horse was put up for sale, 



{e) Salmon v. Ward, 2 C. & P. 211; and see Cave v. Coleman, 3 M. 

 & Ey. 3. 



