•WARRANTY. 



113 



A written 

 warranty. 



state what he warrants : as where a mare was warranted 

 to be " a good hunter, and to have one eye " {t). But 

 where the purchaser requires the vendor to be answerable 

 for some defect, he should take a special warranty against 

 the effects which may be Hkely to proceed from it. 



The buyer should always take care to distinguish 

 between a warranty and a representation (m) ; however, he 

 IS safe if he take a loritteu warranty, and refuse to believe 

 any representation the seller will not commit to paper. A 

 written imrraiiti/ should comprehend not only soundness, 

 but freedom from vice, and also quietness and age, if 

 necessary. 



Also any special terms which may have been agreed upon A special 

 at the time of sale ; for instance, an agreement to take back agreement. 

 the horse, in case he does not suit or is unsound, should be 

 made a part of the written warranty or agreement upon 

 which the sale is effected (iv). 



The following form of receipt and warranty will be found. Form of 

 for general purposes, short and comprehensive : — warranty. 



" Received of P. J. D. fifty pounds for a grey gelding, 

 warranted only six years old, sound, free from vice, and 

 quiet to ride or drive either in single or double harness. 

 50^. R. F." 



Effect of a 



written 



warranty. 



Where the whole matter passes in parol, all that has 

 passed may sometimes be taken together as forming parcel 

 of the contract, though not always, because matter talked 

 of at the commencement of a bargain may be excluded by 

 the language used at its termination ; but if the contract 

 be in the end reduced to writing, nothing which is not 

 found in the writing can be considered as a part of the 

 contract («). 



A warranty may be gathered from letters which have "Warranty may 

 passed between the parties. But where it is sought to f^'o^^igt^/e^s 

 import a warranty into a contract for sale contained in 

 letters, which are ambiguous in their terms, it is competent 

 to the party sought to be charged to give evidence of all 

 the surrounding facts and circumstances, for the purpose of 

 showing that a warranty was not contemplated by the 

 parties («/). 



445 ; S. C, 6 D. & E. 533 ; and 

 Hemming y. Tarry, 6 C. & P. 580. 



{t) B.UJIJS V. Thrale, before Chief 

 Baron Pollock, Feb. 18, 1860. 



(m) See post, p. 134. 



O. 



(«p) Payne v. Whale, 7 East, 274. 



\x) Per Abbott, C. J., Kain v. 

 Old, 2 B. & C. 627. 



(y) Stticley v. Bailey, 31 L. J., 

 Ex. 483. 



