It must be admitted that the principle thus stated is one very difficult of application, and the decisions cited in the two preceding notes are not all easy to reconcile on their precise facts. Another principle which has not yet been very clearly brought out by the cases should be clear wherever it is recognized that an affirmation or representation may form the basis of liability in warranty, even though there is no intent to warrant, and the representations cannot fairly be construed as an offer to contract. The basis of the parol evidence rule is that it must be assumed that when parties were contracting in regard to a certain matter and reduced their agreement to writing, the writing expressed their whole agreement in regard to that matter. This reason is obviously inapplicable to a situation where an obligation is imposed by law, irrespective of any intention to contract. Therefore, if a buyer is induced by positive statements of fact to enter into a written contract for the purchase of goods, there seems no reason why these statements should not be admitted in evidence. False and fraudulent statements inducing the formation of a written contract may of course be proved, and if a false but honest statement inducing the buyer to enter into the bargain renders a seller liable, though he does not intend to contract, there seems every reason for admitting evidence of such statements in spite of the fact that the bargain was reduced to writing.1

ment must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking were reduced to writing. Greenl., Ev., § 275." Other cases illustrating the doctrine are: Allen v. Pink, 4 M. & W. 140; Florence Wagon Works v. Trinidad Mfg. Co., 145 Ala. 677; Ruff v. Jarrett, 94 Ill. 475; Jackson v. Mott, 76 Ia. 263; Neal v. Flint, 88 Me. 72; Atwater v. Clancy, 107 Mass. 369; Leavitt v. Fiberloid Co., 82 N. E. 682 (Mass.); Phelps v. Whitaker, 37 Mich. 72; Palmer v. Roath, 86 Mich. 602; Hersom v. Henderson, 21 N. H. 224; Perrine v. Cooley, 39 N. J. L. 449; Charter Gas Engine Co. v. Kellam, 79 N. Y. App. Div. 231; Brigg v. Hilton, 99 N. Y. 517; Mayer v. Dean, 115 N. Y. 556; Routledge v. Worthington Co., 119 N. Y. 592; McMullen v. Williams, 5 Ont. App. 518; Hadley v. Bordo, 62 Vt. 285; Red Wing Mfg. Co. v. Moe, 62 Wis. 240.

1 This argument is fully supported by the case of De Lassalle v. Guildford, [1901] 2 K. B. 215. In that case, though the parties had entered into a former lease, a contract of considerable solemnity, the plaintiff was allowed to prove that he took the lease only on receiving an oral assurance that the drains were in order, and the defendant was held liable upon this as upon a warranty collateral to the lease. So in the case of Waterbury v. Russell, 8 Baxt. (Tenn.) 159, it was held that misrepresentations of

There are other troublesome questions in the law of warranty which are not affected by regarding warranty as the basis of a tort rather than of a contract. In order to make out either a tort or a contract it is necessary that the seller's statement shall amount to one of fact rather than opinion. Neither a representation nor a promise of what the seller thinks, at least if honestly made, can make the seller liable. It is not easy to draw the line accurately between affirmation of fact on the one hand, and statements of opinion on the other. Several distinctions may be noticed. In the first place it seems obvious that any statement may be put in the form of a statement of opinion. If the seller says a horse is sound, he affirms a fact, but when he states that he believes him to be sound, the only fact which he asserts is his belief, and if he does in fact believe the horse to be sound, he could not be held liable if the horse were not sound. Again there are some matters which are in their nature so dependent on individual opinion that, no matter how positive the seller's assertion, it is not held to create a warranty. Such assertions as that things are fine or valuable, or better than productions of rival makers, are of this sort. It should be noticed, however, that the continual tendency of the law is to restrict the seller in regard to untruthful puffing of his wares. A further test has been suggested; namely, that if the statement is in regard to something of which the buyer is ignorant and relies upon the seller for information, a statement of the seller would be a warranty; but if the matter was one in regard to which the buyer had as good opportunity for forming an accurate judgment, and was as competent to pass such a judgment as the seller, the statement will be matter of opinion. This test does not seem conclusive, however. Though a buyer has the opportunity and the skill to pass judgment upon goods, he may be induced not to do so by positive statements of the seller. If such statements are made for the purpose of inducing a sale and do induce it, there seems no reason why the seller should not be liable. In any event the question concerns rather the buyer's reliance on the assertion than the character of the assertion itself, and the question should be dealt with under reliance. A more detailed consideration of authorities may now be given.

the character of goods made to influence the bargain were warranties, though not inserted in the written contract of sale. But see Telluride Power Co. v. Crane, 103 Ill. App. 647, which held that such representations could not be shown unless fraudulent. See also Leavitt v. Fiberloid Co., 82 N. E. 682 (Mass.).

Since the distinction between what are statements of fact and what are expressions of opinion involves a discrimination between expressions which gradually shade from one to the other, the best way of indicating where the line between the two is to be drawn is by stating a number of decisions on each side. It is to be noticed that the same sort of question which is involved in the law of warranty is also to be observed in actions of tort for deceit and proceedings to rescind a transaction on account of fraud. While it cannot be asserted that any statement which is too largely mere matter of opinion to amount to a warranty may not, at least if fraudulently made, be ground for an action for deceit or proceedings for rescission of a bargain, the converse statement may be made; that is, if a statement falsely and fraudulently made will not sustain an action of deceit or afford ground for rescinding a contract, it is still more clear that it cannot amount to a warranty.1

The question whether a statement by the seller of an animal that it was sound is or may be a matter of opinion is one that has been much litigated. In the older cases the tendency was to hold that such a statement might be matter of opinion, although not so necessarily.2

The modern and better view is that such a statement positively made in such a way as to form part of the inducement of a sale is necessarily a warranty.3

Another class of cases that deserves special notice is that relating to statements of value. Such statements are generally expressions of opinion. The question more often arises in attempts to hold the seller for fraudulent conduct. A statement of facts upon which value depends is, however, an affirmation of fact. Therefore a statement of the cost of property or of offers received for it should be beyond the line allowed for seller's puffing.

Even though a statement is of such character that it would be

1 See note B, p. 579.

2 See Tyre v. Causey, 4 Har. (Del.) 425; Hawkins v. Berry, 10 Ill. 36; House v. Fort, 4 Blackf. (Ind.) 293; Baird v. Matthews, 6 Dana (Ky.) 129; Hazard v. Irwin, 18 Pick. (Mass.) 95; Whitney v. Sutton, 10 Wend. (N. Y.) 411; Erwin v. Maxwell, 3 Murph. (N. C.) 241; Inge v. Bond, 3 Hawks (N. C.) 101. In Pennsylvania the court has gone still further and held such a statement no evidence of a warranty. See supra, p. 559. n. 2.

3 Riddle v. Webb, 110 Ala. 599; Cummins v. Ennis, 4 Del. 424; Joy v. Bitzer, 77 Ia. 73; McClintock v. Emick, 87 Ky. 160; Hobart v. Young, 63 Vt. 363.

4 See infra, note B, p. 579. See also Phillips v. Crosby, 70 N. J. L. 785, stated infra, p. 580; Titus v. Poole, 145 N. Y. 414; also stated infra, p. 580; Oneal v. Weisman, 88 S. W. 290 (Tex., Civ. App.).

regarded merely as an expression of opinion under ordinary circumstances, there may be cases where a seller is subject to an extraordinary duty. Thus, the seller may expressly warrant the correctness of his opinion.1 So where statements are made by one occupying the position of a fiduciary or an expert, expressions which might not render a person of a different character liable, will be actionable. This is well settled in the law governing actions of tort or deceit,2 and there seems no reason to doubt that in the law of warranty the same distinction should be taken. A third class of cases which may be suggested consists of cases where the seller's expression of opinion is made with knowledge of its falsity. But whether a knowingly false statement of the seller's opinion may ever afford ground for an action of deceit because of the seller's fraud, on the ground that a statement by the seller of what he believes is in itself a statement of his own mental attitude which he should have no right fraudulently to misrepresent, knowledge of the incorrectness of his opinion seems to be no ground of liability in the law of warranty.3

1 Aultman v. Weber, 28 Ill. App. 91, the seller of a machine "warranted that it would do as good work as any other in the market. This was held actionable. Had the buyer merely made a statement to this effect in the course of the negotiations, it may perhaps be doubted whether the court would have reached the same result.

So in Briggs v. Rumely Co., 96 Ia. 202, the seller of a machine "warranted " it "to do as good work as any other separator of its size in the United States."

In Hazelton Boiler Co. v. Fargo Gas Co., 4 N. Dak. 365, the sellers said, we guarantee" that the boiler which was the subject-matter of the sale "will make a saving of at least 20 per cent in fuel as compared with any other horizontal boiler." This was held an actionable warranty. See also McCormick Harvesting Machine Co. v. Brower, 88 Ia. 607; Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582.

2 2 Cooley, Torts, 3 ed., 925.

3 Deming v. Darling, 148 Mass. 504. This was an action for fraudulent representations for inducing the plaintiff to purchase a bond by representing that it was an A bond and that the mortgaged railroad was good security for it. Holmes, J., in delivering the opinion of the court said: "The language of some cases certainly seems to suggest that bad faith might make a seller liable for what are known as seller's statements, apart from any other conduct by which the buyer is fraudulently induced to forbear inquiries. Pike v. Fay, 101 Mass. 134. But this is a mistake. It is settled that the law does not exact good faith from a seller in those vague commendations of his wares which manifestly are open to difference of opinion, which do not imply untrue assertions concerning matters of direct observation (Teague v. Irwin, 127 Mass. 217) and as to which it always has been 'understood, the world over, that such statements are to be distrusted.' Brown v. Castles, 11 Cush. (Mass.) 348, 350; Gordon v. Parmelee, 2 Allen (Mass.) 212; Parker v. Moulton, 114 Mass. 99; Poland v. Brownell, 131 Mass. 138, 142; Burns v. Lane, 138 Mass. 350, 356. Parker v. Moulton also shows that the rule is not changed by the mere fact that the property is at a distance, and is not seen by the buyer. Moreover, in this case market prices at least were

Reliance of the buyer upon the seller's statement is also another requirement of the law of warranty. This reliance is obviously part of the gist of any right in tort, and from the standpoint of contract the acceptance by the buyer of the bargain offered to him is a kind of reliance. There is danger, however, of giving greater effect to the requirement of reliance than it is entitled to. It is, of course, true that the warranty need not be the sole inducement to the buyer to purchase the goods.1 And as a general rule no positive evidence of reliance by the buyer is necessary other than that the seller's statements were of a kind which naturally would induce the buyer to purchase the goods and that he did purchase the goods.2

The difficulties which arise in regard to questions of reliance relate to several special classes of cases which may be classified under four headings, as follows: (1) obvious or known defects; (2) inspection; (3) statements made previously to the bargain; (4) statements made subsequent to the bargain. Consideration has already been given to the third class, but something may be said in regard to the others.

The rule in regard to obvious defects is not always clearly stated, and two conceptions exist which are not always kept separate. In the first place a warranty in general terms is held not to cover defects which the buyer must have observed. This is a rule of

3

easily accessible to the plaintiff." It may safely be assumed that the court would have been at least equally clear that the language complained of did not amount to a warranty.

In Osborne v. McCoy, 107 N. C. 726, 730, the court said of a statement of opinion: "If knowingly false, it might have been cause for an action of deceit, but it was no warranty."

In regard to the liability of the maker of such a statement for deceit rather than warranty, the reasoning upon which a promise made with intent not to keep it has been held fraudulent, may be considered.

1 Mitchell v. Pinckney, 126 Ia. 696, 698, and see cases in this article, passim.

2 Shordan v. Kyler, 87 Ind. 38; Mitchell v. Pinckney, 126 Ia. 696; J. I. Case Co. v. McKinnon, 82 Minn. 75.

3 Thompson v. Harvey, 86 Ala. 519; Huston v. Plato, 3 Colo. 402; Marshall v. Drawhorn, 27 Ga. 275; Ragsdale v. Shipp, 108 Ga. 817; O. H. Jewell Filter Co. v. Kirk, 102 Ill. App. 246, aff'd 200 Ill. 382; Connersville v. Wadleigh, 7 Blackf. (Ind.) 102; Dean v. Morey, 33 Ia. 120; Storrs v. Emerson, 72 Ia. 390; Scott v. Geiser Mfg. Co., 70 Kan. 498; Richardson v. Johnson, I La. Ann. 389; Brown v. Bigelow, 10 Allen (Mass.) 242; McCormick v. Kelly, 28 Minn. 135; Hansen v. Gaar, 63 Minn. 94; Branson v. Turner, 77 Mo. 489; Doyle v. Parish, 110 Mo. App. 470; Hanson v. Edgerly, 29 N. H. 343: Leavitt v. Fletcher, 60 N. H. 182; Schuyler v. Russ, 2 Caines (N. Y.) 202; Jennings v. Chenango County Ins. Co., 2 Den. (N. Y.) 75; Day v. Pool, 52 N. Y. 416; Parks v. Morris Ax & Tool Co., 54 N. Y. 586; Bennett v. Buchan, 76 N. Y. 386;