138 



WARRANTY DISTINGUISHED FROM REPRESENTATION. 



The jury 

 must decide 

 between a 

 warranty and 

 a representa- 

 tion. 



Fereival v. 

 Oldaere. 



So, also, in the case of Anthony v. Halstead (r), the 

 following document, viz. : " Received from A. the sum of 

 60^. for a black horse, rising five years, quiet to ride and 

 drive, and warranted sound up to this date, or subject to 

 the examination of a veterinary surgeon," was held not to 

 be a warranty that the horse was quiet to ride and drive. 



It is a question for the jury whether the description of 

 an article in a catalogue, a receipt, or a biU. of parcels, 

 amounts to a loarranty, or is merely a matter of description, 

 or intimation of an opinion, and it should be submitted to 

 the jury with all the attendant circumstances. Thus, where 

 a picture has been sold as a Rembrandt, an action was 

 brought on a bill of exchange of which the picture was the 

 consideration, and it appeared doubtful on the evidence 

 whether there had been a trarranti/ oi only a. representation ; 

 Chief Justice Tindal, in summing up, said, " The question 

 is, whether you think that a warranty was in fact given, 

 and that it was broken ? For, if you do, you must find 

 your verdict for such sum as you think to be the real value 

 of the picture ; but if there was no express warranty, but 

 only a representation, then, as there is no evidence that the 

 plaintiff did not believe that the picture was not a Rem- 

 brandt, he will be entitled to recover the full amount of the 

 bill," which the jury found (s). But in a case where 

 pictures were sold with a bill of parcels, containing the words 

 " four pictures, views in Venice, Canaletti," the jury thought 

 this a warranty, and refusing a rule for a new trial. Lord. 

 Denman, 0. J., said, " It is for the jury to say, under all 

 the circumstances, what was the effect of the words, and 

 whether they implied a warranty of genuineness or conveyed 

 only a description or an expression of opinion. I think that 

 their finding was right ; Canaletti {t) is not a very old 

 painter" (ti). 



So, too, in the case of Percival v. Oldaere (x) the plaintiff 

 saw a horse at Bank's, in Gray's Inn Lane, belonging to 

 the defendant, which was for sale. He afterwards saw the 

 defendant, told him that he had seen the horse, and asked 

 him " What about the horse ? " The defendant said that he 

 was a good harness horse, and that he had been bought to 



(r) 37 L. T., N. S. 433. 



(s) He Schioanberg y. Buchanan, 5 

 C. & P. 343. 



{t) Canaletti died in 1768, and 

 Claude Loraine and Teniers (the 

 younger), mentioned in Jendwine v. 



Blade, died, the former in 1682, the 

 latter in 1694. 



(u) Foiver y. Barham, 4 A. & E. 

 473. 



(a:) FercimlY. Oldaere, 18 C. B . 

 N. S. 338. 



