"inventory” was to be taken in its ordinary sense, Express and referred only to the enumeration (o). warranty. sentations amount to But it is not every representation on the part of What reprethe seller which will constitute an undertaking on do not which he will become legally liable. Mere vague warranty. expressions used by the seller at the time of the sale will not amount to a warranty; "for every one in selling of his wares will affirm that his wares are good" (p): and the rule is, therefore, that simplex commendatio non obligat. "A seller is not liable if he merely makes use of those expressions which are usual to sellers, who praise at random the goods that they are desirous to sell; for the buyer ought not to have relied upon such vague assertions" (q). And no action can be maintained, where the seller did not intend to give an absolute warranty, but merely to express an opinion; therefore, where the defendant inserted in the catalogue of sale the name of a celebrated artist as the painter of a particular picture, which was proved not to be the fact, but no fraud was imputed, he was held not liable (r). So, where the vendor, in the sale of a horse, declared that he knew nothing further of him than he gathered from the pedigree (0) Freeman v. Baker, 2 Nev. & Man. 446. (p) Chandelor v. Lopus, Cro. Jac. 4; Arnott v. Hughes, 1812, M. S, cited Chit. Contr. 359 (2nd Ed.). (q) Sugd. Vend. p. 3. (r) Jendwine v. Slade, 2 Esp. 572. Ꮓ Express warranty. When made. which he received from the former owner, it was held, that the vendor was not liable, though the age was falsely stated in the pedigree (s). So, where the horse sold was warranted sound, and represented to be of a certain age, it was held that the vendor did not intend to warrant the age (t). The warranty of the seller must be at the time of the sale, and not afterwards (u); for a subsequent warranty, although express, is void for want of consideration, neither does the buyer then take the goods upon the credit of the seller's assertion (r). And if there is a written memorandum of the contract subsequently drawn up, containing the alleged warranty, and no express evidence of warranty on the occasion of making the bargain, it is a question for the jury whether the warranty formed part of the original contract, or whether the insertion was merely an after-thought (y). But it will be intended, unless the contrary appear on the declaration, or be made to appear in evidence, that the warranty and the contract were made at the same time (≈). (s) Dunlop v. Waugh, Peake, 123. (t) Budd v. Fairmaner, 5 C. & P. 78; S. C. 8 Bingh. 48. (u) Crosse v. Gardner, Holt, 5; Pope v. Lewyns, Cro. Jac. 630. See 2 Ld. Raym. 1120; Dyer, 76 a. (x) 3 Bl. Comm. 166; Finch, L. 189. (y) Fairmaner v. Budd, 7 Bingh. 574; S. C. 5 M. & Payne, 534. (z) Moor v. Russell, Skinn. 104; S. C. (nom. Mew v. Russel,) 2 Show. 284. See Howlet's case, Latch, 150. warranty. But a warranty made before the sale is good; Express as, where the seller warrants the chattel and fixes the price, and then the buyer takes time to consider for two or three days, and afterwards comes and gives the seller his price (a). So, a prospective warranty, as that a horse shall be sound at a future period, is valid (b). But if the purchaser relies on a warranty given on a prior occasion, he must distinctly connect it with the subsequent contract, and show that the representation was intended to be continuing; therefore, a warranty upon a contract of sale which is afterwards broken off, will not extend to a subsequent bargain of sale of the same chattel (c). Again, if a written memorandum of the contract of sale be drawn up, the buyer cannot give evidence of prior representations by (a) Per Holt, C. J., Lysney v. Selby, 2 Ld. Raym. 1120. (b) Liddard v. Kain, 2 Bingh. 183. And see per Lord Mansfield, C. J., in Eden v. Parkison, 2 Dougl. 735: "There is no doubt but you may warrant a future event." So in Com. Dig. Action on the Case for a Deceipt (A. 11), it is said, that warranty may extend to a future time, as that sheep are sound and shall continue so for a year. See Vin. Abr. Actions, (A. c.), 1, citing King v. Brayne, Trin. 39 Eliz. B. R. But it is otherwise laid. down by Blackstone (3 Com. 166): "Also the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro: as, that a horse is sound at the time of buying of him, not that he will be sound two years hence." (c) Anon., 1 Stra. 414; Dyer, 76 a; see Cro. Jac. 197, So, in Com. Dig. Action for Deceipt (A. 11): The warranty must be made upon the bargain; therefore, if a man affirm himself owner, and sell seven days afterwards, deceit does not lie upon this affirmance. Express warranty. the vendor by way of warranty; though an action might lie for the deceit. Thus, if a representation of quality has been made by the seller before the sale, and a subsequent written agreement does not refer to such representation, the buyer cannot recover on the ground that the chattel does not accord with the representation (d). So, the plaintiff cannot recover on an undertaking of the defendant that the goods shall accord with a sample exhibited, if there is a sale-note which is silent as to the sample (e): and, conversely, where the sale is by sample, this excludes evidence of any warranty, other than that the bulk and sample shall correspond (f). So, where an instrument describing the vessel sold as "copper-bolted" was invalid under the register-acts, and a bill of sale was afterwards executed in which this description was not contained, it was held, that the bill of sale was the only proof of the contract, and that the plaintiff therefore could not recover on the ground that the ship was not copper-bolted (g). (d) Pickering v. Dowson, 4 Taunt. 779. It is said, that, "where the whole matter passes in parol, all that passes may sometimes be taken together as forming part of the contract: though not always, because matter talked of at the commencement of a contract may be excluded by the language used at the termination;" 2 B & C. 634; 5 Bingh. 543. (e) Meyer v. Everth, 4 Campb. 22; Gardiner v. Gray, 4 Campb. 144; Tye v. Fynmore, 3 Campb. 462; Hope v. Atkins, 1 Price, 143. (f) Parkinson v. Lee, 2 East, 314. (g) Kain v. Old, 2 B. & C. 627 warranty. servant. If an agent, or servant, to whom the vendor has Express entrusted the chattel to be sold, gives a warranty to the purchaser at the time of the contract, the principal will be bound; thus, if a master sends By agent or his servant with a horse and gives directions about the sale, the servant thereby becomes the accredited agent of his master, and his representation at the time of the sale is evidence as part of the transaction (h). So, it is said in Viner, if the servant of a taverner sells wine to another, which is corrupted, an action lies against the master, though he did not command his servant to sell it to this particular person (i). The authority to warrant is implied from the general authority to sell the chattel; and it is not necessary to give evidence of special instructions to that effect (k). Yet, if the agent had a special authority, and in giving a warranty to the purchaser exceeds that authority, the principal will not be bound (4). A distinction, indeed, has been taken between horse-dealers and others: it is said, that, if a horse-dealer sends his servant to sell, and the servant contrary to his instructions warrants, the horse-dealer would be bound; but a private (h) See per Lord Ellenborongh, C. J., 5 Esp. 74. And further, as to the express and implied authority of the agent, supra, p. 215. () Vin. Abr. Actions (S. b.), 3. (k) Alexander v. Gibson, 2 Campb. 555; Runquist v. Ditchell, 3 Esp. 64; S. C. 2 Campb. 556, n. (1) Fenn v. Harrison, 4 T. R. 177. See 3 T. R. 757; 1 Esp. 112; 2 Cr. & Mees. 392; Paley, Pr. & A. 204, 209. |