1

appears that the practice of declaring in assumpsit had been common for some years before. It is probable that today most persons instinctively think of a warranty as a contract or promise; but it is believed that the original character of the action cannot safely be lost sight of, and that the seller's liability upon a warranty may sound in tort as well as in contract. In the early case of Chandelor v. Lopus, the court held that a declaration was insufficient after verdict which stated that the defendant affirmed a stone which he, as a goldsmith skilled in precious stones, sold to the plaintiff to be a bezoar-stone whereas it was not, and the court said: "the bare affirmation that it was a bezoar-stone, without warranting it to be so, is no cause of action; and although he knew it to be no bezoar-stone, it is not material, for every one in selling his wares will affirm that his wares are good, or the horse which he sells is sound; yet if he does not warrant them to be so, it is no cause of action." It seems a fair inference from this language that the use of the word warrant was necessary in order to make the seller liable, or at least words importing a direct and positive promise on the part of the seller. This attitude of the law is in conformity with the general unwillingness manifested by the early law to make any implication and to rely strictly on the exact form in which a transaction was put.

Lord Holt, however, decided that an affirmation of title in the seller, though not known to be false, and though not put in the form of a warranty or express promise, was ground for liability.2 It was easy to take the same step in regard to warranty of quality

1 Cro. Jac. 4.

2 Cross v. Gardner, 1 Show. 68 (1689); s. c. Carth. 90; s. c. 3 Mod. 261. In this case the declaration alleged that the defendant sold oxen to the plaintiff “and did falsely affirm them to be his own, whereas in truth they were the oxen of another man." After verdict, it was moved in arrest of judgment that the declaration was not good because the plaintiff had not alleged that the defendant knew the oxen were not his own; but, nevertheless, the plaintiff had his judgment. It was said that it might have been good upon demurrer, but after verdict was well enough.

Medina v. Stoughton, 1 Lord Raym. 593; s. c. 1 Salk. 210 (1700). In this case the plaintiff declared that the defendant, being possessed of certain lottery tickets, sold them to the plaintiff, affirming them to be his own, whereas in truth they were not. The defendant pleaded that he bought them in good faith before the sale and so sold them in good faith. The plaintiff demurred, and Holt, C. J., said: "The plea is ill, and the action well lies. Where a man is in possession of a thing, which is a color of title, an action will lie upon a bare affirmation that the goods sold are his own." How far these decisions advanced beyond the earlier law is not perfectly clear, Furnis v. Leicester, Cro. Jac. 474; Anon., 1 Roll. Abr. 90, 91, fl. 5-8, but Lord Holt at least made clear what was doubtful before.

that had previously been taken in regard to warranty of title. And though there is a dearth of authority during the eighteenth century, it is probable from the cases about the beginning of the nineteenth century that an affirmation of quality inducing a sale had for some time been recognized as rendering the seller liable as a warrantor. The gist of the action was the affirmation of the seller inducing the sale, irrespective of any fraudulent deceit on the seller's part. An action on the case for breach of warranty did not require an allegation that the seller knew his affirmation to be false, and if such allegation was made it did not need proof.1

The nature of the action explains several features in the law of warranty that would have no proper explanation if the action sounded wholly in contract. The rule in regard to obvious defects is of this sort. There seems no reason why a seller should not promise to be answerable in damages for obvious defects, but his liability in tort is another matter. Just as in deceit it is essential that the statements must be such as to induce the plaintiff naturally to rely upon them, so in warranty this natural reliance on the seller's assertions was early regarded as essential. Chief Justice Brian said: "If a man sells me a horse and warrants that he has two eyes, if he has not, I shall not have an action of deceit, as I could know this at the beginning." This was repeated in later cases, and the point of the remark was brought out by a later observation: “and the distinction is taken where I sell a horse that has no eye, there no action lies; otherwise where he has a counterfeit, false, and bright eye." 3 It is obvious, however, that a buyer might rely on a seller's statement and be deceived, even though he could have found out the truth by careful inspection, and this was recognized before long.1

1 Denison v. Ralphson, 1 Vent. 365, the second count stated a warranty that the goods sold were good and merchantable, and averred that the defendant delivered them bad and not merchantable, knowing them to be naught; the court observes that though the declaration be "knowing them to be naught," yet the knowledge need not be proved in evidence. In Williamson v. Allison, 2 East 446, 450, Lord Ellenborough said: "For if one man lull another into security as to the goodness of a commodity, by giving him a warranty of it, it is the same thing whether or not the seller knew it at the time to be unfit for sale: the warranty is the thing which deceives the buyer who relies on it, and is thereby put off his guard. Then if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit and the form of the action cannot vary the proof in that respect."

2 Y. B., 11 Edw. IV, 6.10.

3 Southerne v. Howe, 2 Rolle 5. See also Y. B., 13 Hen. IV, 1.4.

4 Butterfeild v. Burroughs, 1 Salk. 211. This was an action for breach of warranty of a horse which lacked an eye. After verdict for the plaintiff it was objected in arrest of judgment "that the want of an eye is a visible thing, whereas the warranty extends

Another curiosity in the early law of warranty is found in a statement by Blackstone:1 "The warranty can only reach things in being at the time of the warranty made, and not things in futuro; as, that a horse is sound at the buying of him, not that he will be sound two years hence." An understanding of Blackstone's meaning requires reflection upon the origin of the law of warranty in an action based on deceit. It is, of course, law today that one may bind himself by contract for the happening of any future event, and a warranty of a piano for a year, for instance, is a contract to be answerable for any defect that may occur during that time.2 When warranty is based not on an actual contract, however, but on an obligation imposed by law on the seller because of a misrepresentation he has made, the reason of the old rule is plain. It is commonly laid down in the law of deceit that a misrepresentation upon which an action may be founded must be in regard to an existing fact. This has been qualified, especially in recent times, by recognition that a promise is itself a representation of an existing intention. But this qualification is rather apparent than real, since the deception consists not in the future event to which the promise relates, but in the existing fact of the promisor's intention to keep it. It seems upon principle, therefore, that unless an actual contract can be made out, or unless representations as to future events carry with them necessarily a representation as to a present condition, as may often be the case, the statement of Blackstone is sound.6

only to secret infirmities, but to this it was answered and resolved by the court that this might be so, and was intended to be so since the jury has found that the defendant did warrant."

13 Comm. 165.

2 So a warranty that metallic shells to be manufactured shall "finish sound." Franklin Mfg. Co. v. Lamson Mfg. Co., 189 Mass. 344. See also Osborn v. Nicholson, 13 Wall. (U. S.) 654; White v. Stelloh, 74 Wis. 435.

8 Cooley, Torts, 3 ed., 929.

Edgington v. Fitzmaurice, 29 Ch. D. 459; Swift v. Rounds, 19 R. I. 527. So it was held in Lederer v. Yule, 67 N. J. Eq. 65, where a representation that a patent burglar alarm could be made cheaply was held a representation of a present fact.

5 Thus, a representation that a machine will work well for five years, is a representation as to its present condition in effect. The representation means that the machine as it stands is so well constructed as to be capable of enduring use for that period. So a representation that it will require a load of 250 tons to break it. Miller v. Patch Mfg. Co., 101 N. Y. App. Div. 22. So a warranty of seed peas that they would pick four or five days earlier than any other seed on the market.” Landreth v. Wyckoff, 67 N. Y. App. Div. 145; Richardson v. Mason, 53 Barb. (N. Y.) 601; Huntington v. Lombard, 22 Wash. 202.

• In Houser's Case, 39 Ct. Cl. (U. S.) 508, an assurance by the seller that the buyer

Though the idea of warranty as forming the basis of a tort has been lost sight of by many courts in this country in modern times, courts of the highest authorities have recognized that a plaintiff may sue in an action of tort for a broken warranty. It is apparent that a seller may, if he chooses, make promises in regard to the character of the goods which will be binding on ordinary principles of contract, and for which it would seem that assumpsit was a more appropriate remedy than an action on the case, though even where there is a clear promise, if it relates to the existence of a supposed fact, the promise will be a representation or affirmation of the fact as well as a promise. But a promise is unnecessary, and most of the confusion in the law of express warranty is due to a failure to observe that a representation or affirmation by the seller which cannot without straining the facts be properly regarded as contractual (though the remedy of assumpsit and its equivalents may for convenience be permitted) is, and should be, a ground of liability for the seller.

In the light of this introduction some examination may now be made of the disputed points in the law of warranty. Cases which illustrate the rule that an express promise or an agreement to warrant, made at the time of the sale, renders the seller liable, need hardly be stated. But few definitions are more in conflict or more inexactly stated than those defining what statements not made in the form of an express warranty or promise will render the seller liable. In Pennsylvania, following a strong bent given to the law by Chief Justice Gibson, the courts seem to have confined the seller's liability to cases where he makes an express promise.2

No other American jurisdiction seems to go as far as Pennsylvania in this respect, but many American authorities, especially

would have the right to remove shacks sold by the government until a certain day, was held to amount to a warranty that up to that time the seller would have authority to transfer title. In this case the seller may well have been regarded as contracting. In Collins v. Tigner, 60 Atl. 978 (Del.), the court ruled that it was essential that a warranty should be broken when made. This statement clearly needs qualification.

1 Shippen v. Bowen, 122 U. S. 575; House v. Fort, 4 Blackf. (Ind.) 293, 295. See also Gresham v. Postan, 2 C. & P. 540; Watson v. Jones, 41 Fla. 241; Tyler v. Moody, 111 Ky. 191; Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Har. & G. (Md.) 495, 520; Place v. Merrill, 14 R. I. 578; Piche v. Robbins, 24 R. I. 325; Trice v. Cockran, 8 Grat. (Va.) 442, 450.

2 Borrekins v. Bevan, 3 Rawle (Pa.) 23, 42; McFarland v. Newman, 9 Watts (Pa.) 55; Jackson v. Wetherill, 7 Serg. & R. (Pa.) 480; Wetherill v. Neilson, 20 Pa. St. 448; Holmes v. Tyson, 147 Pa. St. 305; McAllister v. Morgan, 29 Pa. Super. Ct. 476; Krauskoff v. Pennypack Yarn Co., 26 ibid. 506.

the older ones, require an "intention to warrant" on the part of the seller. By this requirement, however, is generally meant not what Chief Justice Gibson required, an intent to contract or to agree to be bound, but an intent to make a statement as matter of fact rather than as matter of opinion.

It was said by Buller, J., in a case which did not involve the question of warranty: 1 "It was rightly held by Holt, C. J., in the subsequent cases, and has been uniformly adopted ever since, that an affirmation at the time of a sale is a warranty provided it appears on evidence to have been so intended." 2 This statement in regard to the necessity of intent to warrant seems to have no earlier foundation. The decisions of Holt, alluded to, say nothing about intent, and Blackstone mentions no such requirement in his treatment of the subject.3

In theory all that seems necessary is that the affirmation should have been such as to lead a reasonable man to believe that a statement of fact was made to induce the bargain. Even in the formation of ordinary contracts the only intent, or assent to contract, necessary is that words or conduct shall justify the other party in assuming a particular meaning. Accordingly, in England, little stress seems to have been laid on the requirement of intent,* and in a recent case the doctrine was thus stated: "In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment. In the former case it is a warranty, in the latter not." 5

If this is the true meaning of the requirement of intent, it would seem better to find less misleading language to express the idea. The distinction stated in the language just quoted is between an affirmation of fact and a statement of opinion. What is to be

1 Pasley v. Freeman, 3 T. R. 51. This was an action of deceit for a false and fraudulent statement by the defendant that a person with whom the plaintiff was about to deal was of good credit. It was held that a good cause of action was stated, although the defendant did not benefit by his false representation.

2 P. 57.

4 See, however, Stucley v. Baily, 1 H. & C. 405.

5 De Lassalle v. Guildford, [1901] 2 K. B. 215, 221. This statement was borrowed from Benjamin, Sales, 5 ed., 659. The passage has also the sanction of American authority. Carleton v. Jenks, 80 Fed. 937 (C. C. A.); Roberts v. Applegate, 153 Ill.