46 WARRANTY AND REPRESENTATION. 



from vice " is a warranty, the element of reliance being 

 present, (a) Again, a bare affirmation that a horse is sound 

 is not yer se a warranty. The parties must be shown to the 

 satisfaction of a jury or a judge to have given and received the 

 statements as a warranty, and not merely as a representation. (6) 



Where the language used by a seller is mere expression of 

 opinion, belief, or inference, there is no warranty ; (c) but if 

 it amounts to the statement of a material fact and be rehed 

 on by the buyer, it is construed as a warranty. Thus, m 

 Wood V. Smith, (d) a buyer said to the seller, " She is sound, 

 of course ? " " Yes," said the seller, " to the best of my 

 knowledge." On being asked to warrant, he said further, 

 " I never warrant. I would not even warrant myself" It 

 Avas held that there Avas a qualified warranty given. In 

 another case a buyer said he wanted a " quiet, useful and 

 thankful animal," and the seller answered " that the beast 

 was canny and serviceable in every respect and particularly 

 in riding," and the mare was bought at a fair price. It was 

 held, although the evidence was contradictory, that the 

 seller was bound to take her back and repay the price on 

 proof that he knew she had " tricks," and that she reared 

 and plunged when ridden by strangers, (e) And where a 

 seller did not know the age of a horse, the age marks being 

 undiscoverable at the time of purchase, but had a written 

 pedigree with him, and sold him according to that pedigree 

 knowing nothing further about it than what was in the 

 pedigree, it was held to be no warranty, and that he was not 

 liable to an action on the pedigree turning out false. (/) 



It would appear, however, that to found a plea uj^on a 

 breach of warranty, the deviation from the warranty must be 



(a) Cave v. Coleman, 1828, 3 M. and R. 2 ; in Salmon v. Ward, 1825, 2 C. and 

 P. 211. 



(6) Parsons on Contracts, i. 581, n, and cases there cited. 



(c) IfopJcins V. Tanquery, cit., p. 43 ; M'Connel v. Murphi/, 1S73, L.E. 5 P.C. 

 203. 



(d) Wood V. Smith, 1829, 4 C. and P. 45. 



(e) Bcddle v. 3niroi/, 1812 ; Hume, 695. 

 (/) Dunlop V. Wau^h, 1792, 1 Peake, 123. 



