PROOF OF WARRANTIES. o7 



guarded in auctions, by a condition (</.) that the buyer shall 

 be the judge of it himself. The reason is obvious ; the 

 height of a horse may vary with the position in \Ahich it 

 stands ; and there are many purposes, such as racing, polo, 

 &c., for which ponies are required, where they nmst not be 

 above a certain limited height, else they will be debarred 

 from competition. But where such a warranty is given, and 

 a horse is rejected on disconformity to the warranty, skilled 

 evidence would be required to prove the height precisely. (6) 



45. Proof of Warranties. — Warranties are proved in the 

 same manner as any other conditions of contracts, (c) When 

 the warranty is in writing, (cZ) parole evidence is inadmissible 

 to limit or extend its terms, and nothing which is not found 

 in the writing can be considered as part of the contract, (e) 

 It is also incompetent to mocUfy a complete written con- 

 tract by proof of previous written communings of the 

 parties. (/) But where there is any ambiguity, parole 

 evidence is competent to explain it.(^) Where technical 

 terms are used, they will receive their technical signilication, 

 according to the usage of trade. In all cases of unfitness, 

 whether under warranty, exj)ress, implied, or for a special 

 purpose, (/t) the alleged unfitness must be clearly proved, (i) 

 Thus, where a horse died a few days after sale, and after dis- 

 section the lungs were found greatly inflamed, and the skilled 

 veterinary evidence was conflicting as to the duration of the 

 disease, it Avas held that the evidence nuist be such as posi- 



(rt) See Appx. iv. 



(6) Cossar v. Marjorihanhs, 1826, 4 S. 685, a case in which disconformity to 

 height was raised, but without a warranty being given. 



(c) § 5. 



{(I) Rose V. Johnston, 1878, 5 R. 600, where the question was raised as to how 

 far, and in what circumstances, a written warranty, to which a seller, who cannot 

 write, has adhibited his mark, is binding upon him. 



(c) Abbot, C.J., in Kain v. Old, 1824', 2 B. and C. 627. 



(/) Jnfflis V, Buttery, 1878, 5 R., H.L. 87. 



(fl) Dickson on Evidence, 1077, 1082-3. 



{h) § 58. 



(<) Plckerinr) v. Doicson, 1813, 4 Taunt. 785. 



