WARRANTY DISTINGUISHED FROM REPRESENTATION. 14-5 



" part of it (c), provided it has not been partially exe- 

 " cuted in his favour. If, indeed, he has received the 

 " whole or any substantial part of the consideration for 

 " the promise on his part, the Warranty loses the cha- 

 " racter of a condition, or, to speak more properly, perhaps 

 " ceases to be available as a condition, and becomes a 

 " AVarranty in the narrow sense of the word, namely, a 

 " stipulation by way of agreement, for the breach of 

 " which a compensation must be sought in damages. 

 " Accordingly, if n specific thing has been sold with a 

 " Warranty of its quality, under such circumstances the 

 " property passes by the sale ; the vendee having been 

 " thus benefited by the partial execution of the contract, 

 " and become the proprietor of the thing sold, cannot 

 '* treat the failure of the Warranty as a condition broken, 

 " unless there is a special stipulation to that effect in the 

 " contract {d), but must have recourse to an action for 

 " damages in respect of the breach of Warranty. 



" But in cases where the thing sold is not specific, and 

 " the property has not passed by the sale, the vendee 

 " may refuse to receive the thing proffered to him in per- 

 " formance of the contract, on the ground that it does 

 " not correspond with the descriptive statement, or, in 

 " other words, that the condition expressed in the con- 

 " tract has not been performed. Still, if he receives the 

 " thing sold, and has the enjoyment of it, he cannot 

 " afterwards treat the descriptive statement as a con- 

 " ditiou, but only as an agreement, for the breach of 

 " which he may bring an action to recover damages." 



An action lies by a manufacturer of goods against a Countei-feit 

 person who affixes to his own goods the known and ^^'^^^ marks, 

 accustomed mark of the former, and sells them upon a 

 fraudulent representation that they are of the manufac- 

 ture which such mark would denote them to be (e) ; and 

 such action is maintainable without any allegation or 

 proof of special damage (/). And now by the Mer- 

 chandize Marks Act, 18(52 (r/), a sale of an article bearing 

 a trademark or description, imports a warranty of such 

 trademark or description, unless the contrary is expressed 

 in writing. 



(c) Wheelton v. Hardisty, 27 L. J., {c) Rodyers v. Kowtll, 5 C. B. 109. 



Q. B. 241. (/) JSlqficld V. Payne, 4 B. & Ad. 



{d) J3annerma?iYJFhitc,lO G.B., 410. 



N. S. 844. («/) 25 & 26 Vict. c. 88, ss. 19, 20. 



O. L 



