136 



WARRANTY DISTINGUISHED FROM REPRESENTATION. 



Question to 

 be put to the 

 Jury. 



Rule as to 

 warranty and 

 representa- 

 tion. 



Mere expres- 

 sion of 

 opinion. 



be taken as intended by the parties to amount to a 

 warranty {g). 



The proper question for the jury in a case in which 

 the effect of a statement made during the sale is the point 

 at issue, is Tvhether it is or is not intended to form part of 

 the contract. In the case of Foster v. Smith (h), an agent 

 sold a mare to C, and having no express authority from 

 the owner to warrant her, refused to do so, but at the 

 time of the sale told 0. that " if the mare was not all right 

 she was not his." C. thereupon paid the price, which was 

 received by the owner. The mare proving unsound, C. 

 returned her to the agent, and sued the owner in the 

 County Court for a return of the money. Jervis, C.J., in 

 delivering the judgment of the Court of Common Pleas, 

 said that the proper question to leave to the jury in this 

 case was whether it was part of the contract that the mare 

 should be returned, if she proved unsound ; if so, and she 

 were returned, there would be a failure of consideration, 

 and the plaintiff would be entitled to recover back the 

 price. 



The judges in the Exchequer Chamber have laid down a 

 rule with regard to warrant i/ and representation which 

 appeared to them to be supported so clearly by the early as 

 well as the most recent decisions, that they thought it un- 

 necessary to bring them forward in review. The judgment 

 was pronounced by Chief Justice Tindal, who said, " The 

 rule, which is to be derived from all the cases, appears to 

 us to be, that where upon the sale of goods the purchaser 

 is satisfied without requiring a warrant y (which is a matter 

 for his own consideration), he cannot recover upon a mere 

 representation of the quality by the seller, unless he can show 

 that the representation was bottomed m fraud" (»'). 



In Jendwine v. 8lade {k), where two pictures were sold, 

 described in a catalogue as one by Claude Loraine {I), and 

 the other by Teniers (m), and they turned out to be copies. 

 Lord Kenyon seemed to think that the representation of a 

 fact of which the seller could have no certain knowledge, 

 must be taken as a mere expression of opinion, as these were 

 very old painters, and there was no way of tracing the 

 pictures. 



iff) Gee v. Lucas, 16 L. T., N. S. 

 357. 



(h) Foster V. Smith, 18 C. B. 156. 



(i) Ormrod v. Huth, U M. & W. 

 664. 



(/■) Jendwine v. Slade, 1 Esp. 

 572 ; .5 R. R. 754. 



(I) Claude Loraine died in 1682. 

 ()«) Teniers died in 1694. 



