55ii EFFECT OF PRIVATE WARRANTY. 



Tattersall's, aud he was advertised to be sold there on Monday (May 30, 

 1853). On the previous Sunday the defendant saw the phiintiff, Nvhom 

 he knew, kneeling down in the stall to examine his horse's legs, and 

 said to him, "You need not examine his legs; you have nothing to look 

 for ; I assure you he is perfectly sound in every respect." To this 

 plaintiff replied, "If you say so, I am perfectly satisfied;" and imme- 

 diately got up. Next day the plaintiff, having, as he said, " made up 

 his mind on the 29th of May to buy him, relying on defendant's positive 

 assurance that he was sound," bought the horse for 280 guineas. The 

 horse broke down at his trainer's, and was sold for 144: guineas, and it 

 was sought to recover in this action the difference between that sum 

 and the price he was originally sold at. It was contended, among other 

 points for the defendant, that the conversation was not equivalent to a 

 warranty, but a mere representation of opinion and belief, which, in the 

 absence of fraud, gave no ground for an action ; and farther, that it was 

 no part of the contract under which the horse was sold on the Monday ; 

 and that the representation could not be incorporated into such con- 

 tract, it having been made on a Sunday. All idea of fraud was dis- 

 claimed. 



Talfourd J. thought there was not any evidence of warranty, but de- 

 clined to nonsuit ; and the jury found, in reply to his lordship's ques- 

 tions — (1) That a warranty was embodied in the contract of sale and 

 (2) (though as to this the evidence was conflicting) that California was 

 unsound at the time of sale ; and gave a verdict for the plaintiff of 

 .£142 16s. The Court of Common Pleas held that there was no evi- 

 dence of a warranty, express or implied, to go to the jury ; as the con- 

 versation on the Sunday was a mere representation of what the plaintiff 

 hondfith believed to be the fact, and formed no part of the contract of 

 sale on the next day. Cressicell J., however, intimated his opinion that 

 if such representation had been made at the time of sale, so as to form 

 part of the contract, it might have amounted to a warranty. Maule J. 

 said in the course of the argument: "Assuming that the defendant 

 privately warranted his horse to the plaintiff before the sale, a very 

 serious question would arise, whether such a warranty could be en- 

 forced. Bo7id fide bidders, to whom the horse was not warranted, 

 might thus be induced to offer a higher price, supposing the plaintiff 

 to be bidding on the same footing as themselves. That sort of double- 

 dealing could hardly have been intended by either of these gentlemen. 

 Eacli would, in effect, be taking the chance of an advantage at the 

 expense of third persons." And 2wr Jervis C.J. : " It might be a 

 ground for setting aside a sale between the seller and a third person." 

 In the case of Chapman v. Gwijther (1 N.R. Q.B., 403) the plaintiff 



