WARRANTY 407 



Further, if a horse be sold at a repository where a public notice is 

 fixed up that warranties given there are subject to such notice, the buyer 

 is bound by such notice, though it is not particularly referred to at the 

 time of sale (Bywater v. Richardson, 1834) I. a v. E. 508. In Chapman 

 v. Givyther it was held (I. L.R.Q.B., 463) that when the horse was unsound 

 at the time of sale, but complaint of unsoundness was to be made within 

 a month, and such unsoundness was not discovered within a month of 

 the sale, the buyer was without remedy. 



Special Warranty. There is a further warranty known as special 

 warranty. Such a warranty arises when both parties are cognisant of 

 defect, and when the buyer in the one case wishes to render the seller 

 answerable for any consequences that may arise from such defect, or the 

 seller, on the other hand, wishes to protect himself against them. 



For instance, in Chanter v. Hopkins (4 M. v. W. 406, 1838) the court 

 stated: "If a party offered to sell me a horse of such a description as 

 would suit my carriage, he could not fix in me the liability to pay for it 

 unless it were a horse fit for the purpose it was wanted for; but if I 

 describe it as a particular bay horse, in that case the contract is performed 

 by his sending that horse ". A representation that a horse is "a good 

 drawer and pulls quietly in harness" is a warranty that it is quiet in 

 harness and pulls well there. "Good" means good in all respects (Colt- 

 herd v. Puncheon, 2 D. and R. 10; Smith v. Parsons, 8 C, b. P. 199). 



A high or sound price is no proof of warranty (per Justice Grose in 

 Parkinson v. Lee, 2 East. 314, 1802); but generally in the absence of 

 express warranty the law does not imply a warranty as to goodness or 

 quality upon sales of goods. The sale is caveat emptor. The buyer takes 

 at his own risk, and in general no liability is incurred by reason of bad 

 quality or defects, unless there be an express warranty or fraud. Accord- 

 ing to Mr. Justice Grose in the case above cited, " there must either be an 

 express warranty of soundness or fraud in the seller to maintain an action". 



REPRESENTATIONS THAT DO NOT AMOUNT 

 TO WARRANTY 



Whether representations made by a seller constitute a warranty is 

 frequently a matter of extreme difficulty to decide. Mere loose words of 

 commendation, even though they may induce a purchaser to buy, do not 

 therefore amount to a warranty, as if a seller were to say: "I can fully 

 recommend this horse," or "I would sell it to my dearest friend". (Las- 

 celles on Horse Warranty, 2nd edition, 1881, p. 46.) A warranty may, 

 however, be gathered from a series of letters passing between the parties, 



