408 WARRANTY 



as in Salmon v. Ward (2 C. v. P. 211, 1825). In that case C. J. Best 

 says: " The question is whether the jury and I can collect that a warranty 

 took place; I quite agree that there is a difference between a warranty and 

 a representation, because a representation must be known to be wrong. 

 The plaintiff in his letter says: 'you remember you represented the horse to 

 be five years old', to which the defendant answers, ' the horse is as I repre- 

 sented it'." The jury found that there was a warranty. 



Hopkins v. Tanqueray (15 C.B. 130; 23 L.V. C.P. 102, 1854) 

 affords an excellent illustration of the difference between a mere repre- 

 sentation and a warranty. In that case, on the day before the sale, while 

 the plaintiff was looking at the horse in the stable, the defendant came in 

 and said to the plaintiff: " You have nothing to look for, I assure you ; he 

 is perfectly sound in every respect," and the plaintiff replied: " If you say 

 so, I am satisfied," and bought the horse, presumably on the strength of 

 the defendant's representation. In an action on the assumed warranty the 

 court ruled that there was no warranty. This case, too, confirms the ruling 

 in West v. Jackson (16, 2 B. 280, 1851) that the warranty must be made 

 during the treaty; antecedent representations in no way affect the validity 

 of the sale. 



When a representation is made during actual treaty, which after- 

 wards becomes an important factor in the transaction, it constitutes an 

 intrinsic part of the warranty; but if it forms no part of contract, but 

 was merely made by the vendor to induce the purchaser to buy, it is 

 not a warranty. 



No action, it should be noted, will lie for simple misrepresentation: 

 " The rule which is to be derived from all the cases is that where, upon the 

 sale of goods, the purchaser is satisfied without requiring a warranty, he 

 cannot recover upon a mere representation of the quality by the seller, 

 unless he can show that such representation was bottomed in fraud" 

 (Ormrod v. Huth, 14 M. v. W. 651). Where the misrepresentation is 

 perfectly innocent, both parties believing the horse to be sound, a slightly 

 different construction is put upon the transaction, according as there is or 

 is not a general warranty. In the former case the buyer has a remedy, as 

 the seller is liable for the mistake; but where there is no warranty, the 

 buyer must pay the price agreed upon. In Kennedy v. Panama &c. 

 Mail Co. (L.R. 2 B. 580, 587, Ex. Ch., 1867) Mr. Justice Blackburn says: 

 " There is, however, a very important difference between cases where a 

 contract may be rescinded on account of fraud and those in which it might 

 be rescinded on the ground that there is a difference in substance between 

 the thing bargained for and that obtained. It is enough to show that 

 there was a fraudulent representation as to any part of that which induced 



