Express warranty. Warranty by agent must be at the time of the sale. person would not be bound by the unauthorized warranty of an agent or servant (m). To bind the vendor-principal the warranty of the agent must have been made at the time of the sale (n); therefore, where at the time of making the representation nothing was said as to price, it was held, that, as the contract was not then completed, the statement by the agent did not constitute a warranty (o). And if there has been a previous bargain between the vendor and purchaser, in which nothing is said about warranty, the vendor will not be bound by subsequent statements of the servant or agent who was entrusted to deliver the chattel (p). So it is, where the vendor has given a warranty originally, and the agent, without authority, alters the terms of the warranty (q). On the same principle, in sales by auction, where there are written or printed particulars of sale, the subsequent statements of the auctioneer, contradicting or varying the particulars, will not bind the principal(). (m) See per Lord Eldon, Ch., in Bank of Scotland v. Watson, 1 Dow. 45; and per Bayley, J., in Pickering v. Busk, 15 East, 45. (n) See 7 Bingh. 574. For, as it has been already stated, p. 338, the warranty of the vendor himself must be at the time of the contract. (0) Helyear v. Hawke, 5 Esp. 72. See Peto v. Hague, 5 Esp. 135; Phil. Ev. 99. (P) Woodin v. Burford, 2 Cr. & Mees. 391. (q) Strode v. Dyson, 1 Smith, Rep. 400. (r) Shelton v. Livius, 2 Cr. & Jer. 411. See the cases cited above, p. 153, note (b). The plaintiff must, in general, prove the con- Express tract and the warranty according to the allegations in the declaration. warranty. proof. Thus if part of the consideration be omitted, it Variance in is a fatal variance; as, where two horses were sold by one entire bargain, the warranty extending to both, and the purchaser declared on the sale of one(s). So, where the contract was, that the plaintiff should purchase the horse for £55, part of which was to be returned on a contingency, and the purchaser declared on an absolute contract to purchaser for £55, it was held a variance (t). So, where, on the exchange of two horses, the parties mutually gave a warranty of soundness, the plaintiff was nonsuited because he had not alleged in his declaration that he had warranted his own horse sound; such warranty forming a part of the consideration for the defendant's undertaking (u). But if the consideration was in effect the same as that declared upon, it is sufficient: therefore, where the agreement was, that the plaintiff should give thirty guineas for the horse, and that the defendant should purchase a horse from the plaintiff's brother for fourteen (s) Symonds v. Carr, 1 Campb. 361; S. P. Hart v. Dixon, Selw. N. P. 104. It is immaterial whether the action was laid in assumpsit or in tort, Weall v. King, 12 East, 452. (t) Blyth v. Bampton, 3 Bingh. 472. See Durston v. Tuthan, cited 3 T. R. 67. See above as to Variance, p. 223. (u) Cross v. Bartlett, 3 M. & Payne, 537. Express warranty. When the allegation is sufficient. guineas, the difference only to be paid by the plaintiff, it was held that this might be declared upon as an agreement to purchase for thirty guineas; since the parties agreed to consider the second horse as fourteen guineas in their mode of reckoning the payment (a). So, where the consideration was stated to be sixty guineas, but the bargain proved was, that the plaintiff should give that sum, "and, if the horse was lucky, £5 more or the buying of another horse," it was held to be no variance; because the substantial and operative part of the consideration was sufficiently alleged, and the additional item was too vague to constitute a legal obligation (y). In stating the terms of the warranty and the extent of the undertaking, it is sufficient if the plaintiff set forth in his declaration those parts which are relevant to the breach (2). "It is a very different thing whether the plaintiff state truly those parts of a contract the breach of which he complains of, though other parts not material to the question be not stated; or, whether he state any part of it untruly for then it appears to be a different contract" (a). If the warranty be (x) Hands v. Burton, 9 East, 349; S. P. Brown v. Fry, Selw. N. P. 632 (8th Ed.). (y) Guthing v. Lynn, 2 B. & Ad. 232; Cave v. Coleman, 3 Man. & Ry. 2. (z) Miles v. Sheward, 8 East, 7. See per Abbott, C. J., 4 B. & A. 391. Supra, p. 226. (a) Per Lawrence, J., 8 East, 9. warranty. stated inaccurately, it will be a variance: there- Express fore, where the plaintiff declared on a general warranty of a horse, and the proof was of a warranty in every respect except a kick on the leg, it was held fatal (b); although the breach complained of was, that the horse had the dropsy, and was unsound in other respects unconnected with the lameness. This case, however, has been disapproved of; and, in a late case similar in circumstances, where a general warranty was declared upon, whereas it appeared in proof to have been a qualified one, but the qualification was not involved in the alleged breach, Alderson B. allowed an amendment (c). 2. Implied Warranty. The maxim caveat emptor applies to the pur- Implied warranty in chaser; therefore, to charge the vendor, the under- what cases. taking must be express, and in general a warranty will not be implied in law in the sale(d) or exchange (e) of a chattel. An opinion formerly prevailed that a warranty might be presumed from the extent of the price given; but this has long been exploded(f). Accordingly, although a fair mer (b) Jones v. Cowley, 4 B. & C. 445; S. C. 6 D. & R. 533. See Morris v. Lithgoe, 2 Smith, Rep. 395. (c) Hemming v. Parry, 6 C. & P. 580. (d) Baglehole v. Walters, 3 Campb. 154. Implied warranty. chantable price have been given, the law will raise no implied warranty that the goods shall be of merchantable quality (g). There are some cases, however, in which the law will imply a warranty: thus, it should seem that in every contract of sale it is an implied conGood title. dition, unless the contrary be expressed (h), that the seller can make out a good title to the chattel sold (i). (g) Parkinson v. Lee, 2 East, 314. See 3 Campb. 351. (i) Robinson v. Anderton, Peake, 94; Peto v. Blades, 5 Taunt. 657; Crosse v. Gardner, Carth. 90; S. C. 1 Show. 68, Comb. 142, 3 Mod. 261; Furnis v. Leicester, Cro. Jac. 474. So it is laid down by Blackstone (2 Com. 451): "A purchaser of goods may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose." And in 3 Com. 166:-" In contracts for sales, it is constantly understood that the seller undertakes that the commodity he sells is his own; and if it proves otherwise, an action on the case lies against him to recover damages for this deceit." Acc. Com. Dig. Action on the Case for a Deceipt, (A. 8). But see Early v. Garrett, 9 B. & C. 932, per Littledale, J.; Medina V. Stoughton, 1 Salk. 110; Springwell v. Allen, Aleyn, 91; and 2 East, 443, n.; Turner v. Brent, 12 Mod. 245; Dale's case, Cro. Eliz. 44. The older cases in general seem to assume that there is no implied warranty of good title: but probably this may have been because the only two species of actions of this nature, formerly recognised, were, an action on an express warranty, and an action for deceit-the latter requiring knowledge on the part of the vendor. It has been recently determined, that, in a contract for the sale of the unexpired residue of a term, there is an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself; Souter v. Drake, 5 B. & Ad. 992, |