"Warrantees. 109 



" Or, 4 Warranted to have been constantly driven both 

 In single and double harness, to have carried a lady, to 

 have been regularly hunted, to be a good hunter or hack- 

 ney, &c., &c.' 



" Following the word ' except 5 there being opportunity 

 afforded the (honest) vender 'of stating what he may 

 know invalidating the warranty, and thereby saving his 

 reputation as well as screening himself from the proba- 

 bility of litigation afterwards. 



" ' With respect to what (oral) declarations of the seller 

 will amount to a warranty, the primary rule for the inter- 

 pretation of contracts in general is applicable. It depends 

 upon the intention of the parties. A simple affirmation 

 of the goodness of an article is a warranty, provided it 

 (a warranty) appear to have teen intended y whereas the 

 sublimest epithets that a seller ever employed to recom- 

 mend his goods to a credulous buyer will be regarded as 

 the idle phraseology of the market, unless an intended to 

 warranty actually appear.' In fine, ' it is from the inten- 

 tion of the parties, as collected from the whole transac- 

 tion, and from the meaning they aj)pear to have attached 

 to particular expressions, that the existence or non-exis- 

 tence of a warranty is to be inferred.' 



" ' Let us now consider how the rights of parties are 

 affected by the horse being unsound at the time of the 

 warranty. The contract being thus broken on the part 

 of the seller, it is at the buyer's option either to treat it 

 as a nullity, and return the horse, or to retain him, not- 

 withstanding, and bring an action on the warranty. In 

 the former case, the price paid is the measure of the 

 damages he will be entitled to recover in an action ^ in 

 the latter, the difference between that price and his real 

 value. If he offer to rescind the contract and return the 

 horse, he may also recover the expenses of his keep ; but 

 in order to do this, a positive tender is said to be neces- 

 sary. No notice of the unsoundness need be given to 

 the vender to entitle the vendee to maintain the action ; 

 nor is it necessary to bring the action immediately on 

 discovering the unsoundness.' — ' But although such a no- 

 tice be not essential, yet it is always advisable to give it, 



