WARRANTY AND REPRESENTATION. 47 



material, (a) NoAvhere is this doctrine better illustrated 

 than in the case of Gedcles v. Penington. (b) There, a party- 

 bought a horse under a Avritten warranty, as " my dark bay 

 horse, . . . safe in harness." The seller represented that 

 the horse had been sent to him for sale by a gentleman in 

 England, whereas he had bought him from a gentleman in 

 Leith, who parted with him because he had once proved 

 vicious in a gig, and this fact was known to the seller. After 

 being kept two months, the horse became restive in a gig, 

 partly because of the buyer's blame. It was held that the 

 misrepresentation as to the former owner of the horse was 

 not sufficient to annul the sale, as the warranty Avas silent as 

 to the former owner. (c) In Hardie v. Austin,(cl) a seedsman 

 purchased one of two lots of turnip seed, represented by the 

 seller as " East Lothian Swede. . . . Both lots were grown 

 in East Lothian, and are first-class stock." Delivery was 

 given on 1st June. On 13th August he wrote that he 

 found the yield insufficient, and requested the seller to take 

 it back, which he declined to do. In an action for the 

 price, it was observed that no express warranty was given 

 by the above words ; but the representation being true, the 

 seller was held not liable for the deficiency in germinating 

 power. 



As illustrating hoAv narrow the distinction between a 

 representation and a warranty may be, the case of Rough v. 

 Moir{e) may be cited. In that case (which was decided on the 

 implied warranty of fitness for a special purpose) there was 

 a representation in an auctioneer's catalogue of a horse as 

 having been " driven regularly in double and single harness." 

 Lords Deas and Mure held that this did not amount to 



(a) 1 Smith's L.C. 190. 



(6) Geddcs v. Pcninrjlon, 1814, 17 F.C. 60G ; aff. 1S17, 5 Dow, 159; 6 Pat. 

 App. 312 ; see also Ilardie, infra, note (d). 



{c) There is a very instructive Sheriff-Court case, of an assurance against crib- 

 biting and wind-sucking being construed as warranty, where no express warranty 

 was given, Vaucamps v. Campbell's Trustees, 1889, 5 S.L. Rev. 353. 



((/) Ilardie v. Austin .0 M' Asian, 1870, 8 M. 798. 



(e) liouyh V. Moir, 1875, 2 R. 529, see § 58. 



