Burness. 



WARRANTY DISTINGUISHED FROM REPRESENTATION. 139 



matcli for Baron Eothschild for 85/., and that he was only 

 selling him because he would not match. The plaintiff on 

 this went to Bank's, and bought the horse eventually for 

 65/. The horse, on being put in harness, turned out to be 

 a kicker, and kicked the plaintiff's trap to pieces. He was 

 afterwards sent to a stable, and sold for 40/., and the action 

 was brought for the difference. The jury found a verdict 

 for the plaintiff for the 25/. claimed. In moving for a new 

 trial it was contended that there was no evidence of war- 

 ranty, but Erie, C.J., said that Mr. Justice Byles, who 

 tried the cause, was of opinion that there was evidence to 

 go to the jury of a warranty, and that the verdict therefore 

 ought not to be disturbed. 



In the case of Behn v. Burness («/) Mr. Justice WilHams, Sekn v. 

 in delivering the judgment of the Exchequer Chamber, gave 

 the following lucid exposition of the legal characteristics 

 of representation as distinguished from warranty. He said, 

 "Properly speaking, a representation is a statement or 

 assertion made by one party to the other, before or at the 

 time of the contract, of some matter or circumstance re- 

 lating to it. Although it is some thing contained in a 

 written instrument, it is not an integral part of the contract, 

 and consequently the contract is not broken, although the 

 representation proves to be untrue nor (with the exception 

 of the case of policies of insurance, or at aU events marine 

 poUcies, which stand upon a peculiar and anomalous foot- 

 ing) is such untruth any cause of action, nor has it any 

 efficacy whatever, unless the representation was made 

 fraudulently, either by reason of its being made with a 

 knowledge of its untruth, or by reason of its being made 

 dishonestly, or with a reckless ignorance whether it was 

 true or untrue (s). If this be so, it is difficult to understand 

 the distinction which is to be found in some of the treatises, 

 and is in some degree sanctioned by judicial authority {a), 

 that a representation, if it differs from the truth to an 

 unreasonable extent, may affect the validity of the contract. 

 Where, indeed, a representation is so gross as to amount to 

 sufficient evidence of fraud, it is obvious that the contract 

 on that ground is voidable. Although representations are 

 not usually contained in the written instrument of contract, 



(y) Behn v. Burness, 32 L. J., Q. Q. B. 221 ; Wheelton v. Hardisty, 27 



B. 204, recognized and approved by L. J., Q. B. 241. 



Erie, C.J., Mallan v. Radloff, 5 N. (a) Barker v. Windle, 6 El. & Bl. 



R. 54. 675, 680. 



[z] MUoHy. Von Olehen, is L.J. , 



