WAKRANTY DISTINGUISHED FROM REPRESENTATION. 135 



jury can collect that a warranty took place ; I quite agree 

 that there is a difference between a warranty and a repre- 

 sentation, because a representation must be knoion to be 

 wrong. The plaintiff in his letter says, ' You remember 

 you represented the horse to me as five years old.' To 

 which the defendant's answer is, ' The horse is as I repre- 

 sented it.' Ifow if the jury find that this occurred at the 

 time of sale, and without any qualification, then I am of 

 opinion that it is a warranty. If it occurred before, or if 

 it was qualified, then it must be taken to be a representation 

 and not a warranty." His Lordship then left the question 

 to the jury, telliag them " that if they found that the 

 defendant at the sale gave an undertaking to the effect 

 mentioned in the letters, then such undertaking was a 

 warranty!' The jury returned a verdict for the 

 plaintiff (e). 



A representation to amount to a warranty must be shown Where repre- 

 not only to have been intended to form part of the con- sentation 



ij.ii.ij_i 1- 1 J- j.1. amounts to a 



tract, but also to have been made pending the con- warranty. 

 tract. And therefore where A. sent his horse to Tatter- 

 sail's for sale, by auction without warranty, and on the day 

 before the sale found B. in the stable examining the horse's 

 legs, and A. said to him, " You have nothing to look for ; 

 I assure you he is perfectly sound in every respect ; " 

 whereupon B. replied, " If you say so, I am perfectly 

 satisfied." Upon the faith of this representation (admitted 

 to have been made in good faith) B. became the purchaser. 

 It was held that this was no warranty, as this representa- 

 tion was not intended to form part of the contract of sale, 

 nor was it made pending the contract. For the sale being 

 by auction, the negotiations between the parties had not 

 commenced, inasmuch as the contract began only when the 

 horse was put up for sale, and ended when he was knocked 

 down to the highest bidder (/). 



Where the words " In foal to "Warlock " were appended 

 to the name of a mare in a printed catalogue of horses 

 to be sold by auction ; and other mares in the same cata- 

 logue were described as having been "served" by or 

 " stinted to " certain horses ; it was held that, looking 

 to the expressions used with respect to other mares 

 and to the nature of the fact represented, the words must 



(e) Salmon v. Ward, 2 C. & P. (/) Hopkins T. Tanqueray, 23 L. 



2U ; and see Cave v. Coleman, 3 M. J., C. P. 162. See also Chalmersx. 

 & Ey. 3. Harding, 17 L. T., N. S. 571. 



