140 WAEEAKTY DISTIKGUISHED FEOM EEPEESENTATION. 



yet they sometimes are, but it is plain that their insertion 

 therein cannot alter their nature. A question, however, 

 may arise whether a descriptive statement in a written 

 statement is a mere representation, or whether it is a sub- 

 stantive part of the contract. This is a question of con- 

 struction, which the Court and not the jury must determine. 



" But with respect to statements in a contract descriptive 

 of the subject matter of it, or of some material incident 

 thereof, the true doctrine estabhshed by principle as well as 

 by authority appears to be, generally speaking, that if such 

 descriptive statement was intended to be a substantive part 

 of the contract {h), it is to be regarded as a warranty, that 

 is to say, a condition on the failure or nonperformance of 

 which the other may, if he be so minded, repudiate the 

 contract in toto, and so be relieved from performing his 

 part of it (c), provided it has not been partially executed in 

 his favour. If, indeed, he has received the whole or any 

 substantial part of the consideration for the promise on his 

 part, the warranty loses the character of a condition, or, 

 to speak more properly, perhaps ceases to be available as a 

 condition, and becomes a warranty in the narrow sense of 

 the word, namely, a stipulation by way of agreement, for 

 the breach of which a compensation must be sought in 

 damages. Accordingly, if a specific thing has been sold 

 with a warranty of its quahty, under such circumstances 

 the property passes by the sale ; the vendee having been 

 thus benefited by the partial execution of the contract, and 

 become the proprietor of the thing sold, cannot treat the 

 failure of the warranty as a condition broken, unless there 

 is a special stipulation to that effect in the contract (c/), but 

 must have recourse to an action for damages in respect of 

 the breach of warranty. 



" But in cases where the thing sold is not specific, and 

 the property has not passed by the sale, the vendee may 

 reiiise to receive the thing profiered to him in performance 

 of the contract, on the ground that it does not correspond 

 with the descriptive statement, or, in other words, that the 

 condition expressed in the contract has not been performed. 

 Still, if he receives the thing sold, and has the enjoymenc 

 of it he cannot afterwards treat the descriptive statement as 

 a condition, but only as an agreement, for the breach of 

 which he may bring an action to recover damages." 



(h) Foster V. Smith, 18 C. B. 156. [d) SminermmiY. White, 10 C. E., 



(c) WheeltonY. Sardisiy, 27 L. J., K. S. 844. 

 Q. i!. 241. 



