RANTIES. a certain horse, [or dog, &c.] at and for a certain price or sum of money, ON WARto wit, the sum of -. to be therefore paid by the said *plaintiff, he the said defendant undertook, and then and there faithfully promised the said bulk of the goods do not correspond with the sample, it would be a breach of the warranty. If the contract describe the goods as of a particular denomination, there is an implied warranty that they shall be of a merchantable quality, of the denomination mentioned in the contract, 4 Campb. 144-3 Chit. Com. Law, 303. 1 Stark. 504. 4 Taunt. 853.5 B. & A. 240. In all contracts for the sale of provisions there is an implied contract, they shall be whole some. 1 Stark. 384.-2 Campb. 391. Campb. 286. If goods are ordered to be manufactured, a stipulation that they shall be proper is implied. 4 Campb. 144.-6 Taunt. 108; especially if for a foreign market, 4 Campb. 169.6 Taunt. 108. See a form, post, 282. An implied warranty will arise from the non-observance of an usage in specifying defects, 4 Taunt. 847. Holt. C. N. P. 95. and see 4 B. & C. 110, 114. existed, and was apparent or obvious at the Where a horse has been warranted sound, A simple affirmation, or assertion by the vendor as to the value or quality of the goods does not amount to a warranty unless it be made and received as such, although, the purchaser may have bought the goods on the faith of such recommendation, Cro. Jac. 4 Rol. Ab. 101. Chit. jun. Contr. 135. and in many cases the positive recommendation of the seller is not, from the nature of the case, to be regarded as a warranty, but merely as an expression of his belief and opinion on a matter of which he could have no certain knowledge, and on which the purchasers were generally capable of forming an opinion, Chitty jun. Contr. 135. Thus where the defendant not knowing the age of a horse, but having a written pedigree which he received with him, sold him as a horse of the age stated in the pedigree, at the same time stating that it was his source of information.Lord Kenyon held this was no warranty. Peake Rep. 123.-2 Esp. 572, and see 5 B. & Ald. 240. Chit. jun. Contr. 135.-1 Bingh. 344. (In the case in 4 Car. & P. 45, it was decided, that if a person, at the time of selling a horse, say, “I never warrant, but he is sound as far as I know," this is a qualified warranty, and may be sued on even in assumpsit, showing that the plaintiff knew of the unsoundness. Sed quare.) A general warranty will not extend to guard against defects that are plain and obvious to the senses of the purchaser. As if a horse be warranted perfect, and wants an ear, or a tail, &c. 2 Bla. Com. 165.-1 Salk. 211. But if on the sale of a horse, the seller agree to deliver it sound and free from blemish at the expiration of a specified period, the warranty is broken by a fault in the horse when delivered, although such defect If not otherwise stipulated, an action for the breach of warranty, may be supported without returning the horse, or even giving notice of the unsoundness, and although the purchaser have re-sold the horse. 1 Hen. Bla. 17.-1 T. R. 136.-2 T. R. 745.-9 B. & Cres. 265. But unless the horse be returned as soon as the defect is discovered, or if the horse has been long worked, the purchaser cannot recover back the purchase money on the count for money had and received. 1 T. R. 1365 East, 449.-7 East, 274.-2 Campb. 410. -1 New Rep. 360. and in all cases the vendee should object within a reasonable time, otherwise a strong presumption arises that the article, at the time of the sale, corresponded with such warranty, and the plaintiff is called upon to give the strictest proof of the breach, 9 B. & C. 265.—1 J. B. Moore, 106. 1 H. Bla. 19. ON WAR- plaintiff that the said horse [or dog, &c.] then was [sound (h)]. And the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, buy the said horse [or dog, &c.] of the said defendant, and then and there paid him for the same the said sum of money, nevertheless, the said defendant, contriving, and fraudulently in[*281] tending to injure the said plaintiff, did not perform or regard his said *promise and undertaking, so by him made as aforesaid, but thereby craftily and subtly deceived and defrauded the said plaintiff in this, to wit, that the said horse, [or dog, &c.] at the time (i) of the making of the said promise and undertaking of the said defendant was not [sound] but, on the contrary thereof, was at that time [unsound (k)], whereby the said horse [or dog, &c.] became *and was of no use or value to the said plaintiff; and he the said plaintiff hath been put to great charges and expense of his monies in and about the feeding, keeping, and taking care of the said horse (1), in the whole amounting to a large sum of money, to wit, the sum of —. to wit, at, &c. (venue) aforesaid. Second count on And whereas also afterwards, to wit, on the day and year aforesaid, at, an execut- &c. (venue) aforesaid, in consideration that the said plaintiff, at the like speed consid- cial instance and request of the said defendant, had then and there (m) eration. When the purchaser has not returned the For what damage defendant is liable in (h) This form may readily be applied to any description of warranty, as that the horse was "free from vice," &c. The warranty must be described accurately, and co-extensive with the breach complained of. If any conditional or exceptional terms be used, they must be followed in setting out the contract. Therefore if a horse be warranted sound, every where except a kick on the leg, the exception must be stated, 4 B. & C. 445. What a variance, 2 D. & R. 10.-7 Taunt. 405.-1 J. B. Moore, 109.-4 B. & C. 108. (See Heming v. Parry, 6 Carr. & P. 589, Where Alderson, B. observed on Jones v. Cowley, 6 D. & Ryl. 533.) (i) This is necessary. (k) The particular description of unsoundness need not be stated, it being a rule in pleading, that the breach may in general be assigned in the negative of the words of the contract, Com. Dig. Pleader, C. 45.-2 Saund, 481 b.-3 T. R. 307.-9 Co. 60 b.— Ante, vol. i. 291, &c. () When not recoverable, see 2 Campb. 82.-2 Chitty's Rep. 416. If the horse has not been tendered to the defendant the plaintiff cannot recover damages for the expense of his keep. 1 Taunt. 566. But where there has been an express warranty, and the plaintiff relying thereon, had resold the horse with a similar warranty, and being sued thereon by his vendee, offers the defense to his vendor, who gives no directions as to the action, the plaintiff may recover the costs of his defense, as part of the damages occasioned by the breach of warranty. 7 Taunt. 153.–1 J. B. Moore, 106. -1 R. & M. 436.-8 Taunt. 535. (m) 1 Vin. Ab. 578. RANTIES. bought of the said defendant a certain other horse, at and for a certain on warother price or sum of money then and there agreed upon between the said plaintiff and the said defendant, he the said defendant undertook, and then and there faithfully promised the said plaintiff, that the said last-mentioned horse, at the time of the said sale thereof was sound; nevertheless, the said defendant, contriving and intending to injure the said plaintiff, did not regard his said last-mentioned promise and undertaking, but thereby craftily and subtly deceived and defrauded him in this, to wit, that the said last-mentioned horse, at the time of the said sale thereof was not sound, whereby the said last-mentioned horse then and there became, &c.- Conclude as in the first count from the*, and add counts for horse-keep, as ante, 59, if there were any contract to that effect, and the money counts, and account stated, and breach.] soundness horses For that whereas heretofore, to wit, on, &c. (day of contract or about On a warit) at, &c. (venue) in consideration that the said plaintiff, at the special in- ranty of stance and request of the said defendant, would deliver to the said defend- on the exant a certain horse of the said plaintiff, of great value, and would also pay change of to the said defendant a certain sum of money, to wit, the sum of —l. of (n). lawful money of Great Britain, in exchange for a certain mare of the said defendant, he the said defendant undertook, and then and there faithfully promised the said plaintiff, that the said mare of the said defendant was then and there sound: and the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, deliver to the said defendant the said horse of the said plaintiff, and did also then and there pay to the said defendant the said sum of—l. in exchange for the said mare of the said defendant; yet the said defendant contriving, and fraudulently intending to injure the said plaintiff, did not perform or regard his said promise and undertaking; but thereby craftily and subtly deceived the said plaintiff in this, to wit, that the said mare, at the time of the making of the said promise and undertaking of the said defendant as aforesaid, was not sound, but on the contrary thereof was at that time unsound, whereby the said mare became and was of no use or value to the said plaintiff, to wit, at, &c. (venue) aforesaid; and whereby also, [State special damage, if any, by expense of feeding, &c. as ante, 281.] And Second whereas afterwards, to wit, on the day and year aforesaid, at, &c. (venue) count on aforesaid, in consideration that the said plaintiff, at the like special in- ed considstance and request of the said defendant, had then and there delivered to eration. the *said defendant, a certain other horse of the said plaintiff, of great [*282] value, and had also paid to the said defendant, a certain other sum of money, to wit, the sum of -7. in exchange for a certain other mare of the said defendant, he the said defendant then and there undertook, and then and there faithfully promised the said plaintiff that the said last-mentioned mare, at the time of such last-mentioned exchange, was sound; yet the said defendant, contriving and intending to injure the said plaintiff, (n) When not necessary, see 9 East, 349. Generally speaking, as in a contract of sale, there is no implied warranty in the exchange of one commodity for another, 3 Campb. 351; see ante, 279, notes. contract for the exchange of a watch for In a candlesticks warranted silver, the owner of an execut RANTIES. ON WAR- did not perform or regard his said last-mentioned promise and undertaking; but thereby craftily and subtly deceived the said plaintiff in this, to wit, that the said last-mentioned mare, at the time of the said last-mentioned exchange, was not sound, but was at that time unsound, and thereby became and was of no use or value to the said plaintiff, to wit, at, &c. (venue) aforesaid.-[Add statement of the damage and the common counts, as pointed out, ante, 281.] For that whereas, heretofore to wit, on, &c. (day of sale or about it) at, &c. (venue) in consideration that the said *plaintiff, at the special instance and request of the said defendant, had then and there undertaken, and faithfully promised the said defendant to buy of him divers goods and merchandize, to wit, &c. [here describe the goods generally,] for certain large prices then and there agreed upon by and between the said plaintiff and the said defendant, amounting together to a large sum of money, to wit, the sum ofl. of lawful money of Great Britain, he the said defendant undertook and then and there faithfully promised the said plaintiff, to furnish such goods and merchandize as aforesaid, properly preserved and packed up for the East Indies aforesaid, and to pack them properly for the said voyage; and the said plaintiff in fact says, that although he, confiding in the said promise and undertaking of the said defendant, did, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, buy of the said defendant a large quantity of goods and merchandize, as and for the same goods and merchandize so agreed to be bought as aforesaid, and which the said defendant then and there supplied and furnished to the said plaintiff, as and for such goods and merchandize, to wit, at, &c. (venue) aforesaid; yet the said defendant, not regarding his said promise and undertaking, did not nor would, although often requested so to do, furnish such goods and merchandize as aforesaid, fit to be sent to the East Indies as aforesaid, or pack them properly for the said voyage, according to his said promise and undertaking so made as aforesaid, but wholly neg See note, ante, 279. See other forms, 1 Wentw. 482.-1 Campb. 190.-2 East, 314. Upon a parol sale of goods by sample, an implied warranty arises that they shall correspond with the sample. 4 B. & A. 387.-3 Stark. 32, and notes.--4 Campb. 22. But this is not so in a written sale by sample.-4 Campb. 144, 169.-2 Campb. 22. And upon a sale of goods by sample, the law does not raise an implied warranty that the goods should be merchantable, though a fair merchantable price were given, and if there be a latent defect then existing, unknown to the seller, and without fraud on his part, the seller is not answerable, though the goods turn out to be unmerchantable, and the contract is satisfied, if the sample answers fairly to the commodity in bulk. 2 East, 314. If the goods do not correspond with the sample, the vendee is not bound to complete the purchase on being allowed a compensation for the inferiority, notwithstanding a usage in the trade to that effect. 1 Campb. 113. Where a purchaser finds that the commodity does not accord with the order, and is unfit for his purpose, he should immediately return it, or give notice to the vendor to take it back. 1 Campb. 193.-7 Ves. 247.-And after an action has been brought for the value of goods furnished at a stipulated price, and the purchaser does not, either in bar of the action, or to reduce the damages, object to the quality of the goods, but allows the seller to recover the full price agreed upon, he cannot maintain a cross action, on the ground of the goods being of a bad quality, and unfit for the purpose for which they were ordered. 1 Campb. 190. semb. In an action for the price of goods ordered by defendant, which are sent to the purchaser, and immediately returned, it lies upon the plaintiff to show that the articles correspond with the order given. 1 Campb. 180. If the goods delivered are generally the same as those contracted for, and have been paid for by the purchaser, the price cannot be recovered back in an action for money had and received, as upon a failure of consideration, however bad their quality may be, and although they are quite unfit for use. 2 Id. 411. Secoud count, for fit and proper to be sent to foreign markets. lected and refused so to do, and therein made default; and then and there ON WARso negligently and improperly conducted and behaved himself in and about RANTIES. the furnishing and packing of the said goods and merchandize, that the same, by reason thereof, were wholly unfit for the purpose aforesaid, and thereby the said plaintiff not only lost all the benefit, profit, and advantage which he otherwise might and would have *derived and acquired [*284] from the purchase of the said goods and merchandize, but also was put to great expense of his monies, to wit, -7. in and about the shipping and conveying of the same to the East Indies aforesaid, in and about other expenses relating to the same; and was also put to great expense, loss, and inconvenience, in and about the sale and disposal of the said goods and merchandize, and sustained great loss and damage on occasion of his not being able to sell or dispose of the same, at, &c. aforesaid. And whereas heretofore, to wit, on, &c. at, &c. aforesaid, in consideration that the said not selling plaintiff, at the like special, &c. of the said defendant, had then and there goods, &c. undertaken, and to the said defendant faithfully promised to buy of him that were divers other goods and merchandize, to wit, &c. [here describe the goods, &c. as in first count], at and for a certain sum of money, to wit, the sum of. of like lawful, &c. to be therefore paid by the said plaintiff for the same, he the said defendant undertook, and to the said plaintiff then and there faithfully promised to furnish such goods and merchandize as aforesaid, as were reasonably fit and proper (p) to be sent to the East Indies aforesaid. And the said plaintiff in fact says, that although he, confiding in the said promise and undertaking of the said defendant, afterwards, to wit, on the day and year aforesaid, did buy of him a large quantity of goods and merchandize, as and for the said goods and merchandize so bought as aforesaid: and the said defendant then and there supplied and furnished the same to him accordingly, to wit, at, &c. (venue) aforesaid; yet the said defendant, not regarding his said last-mentioned promise and undertaking, then and there craftily and subtly deceived and defrauded the said plaintiff in this, to wit, that the said last-mentioned goods and merchandize were not, when they were so furnished and supplied as aforesaid, reasonably fit or proper to be sent to the East Indies as aforesaid, but on the contrary thereof, were then and there wholly unfit for that purpose, and by reason thereof, the said plaintiff hath not only lost. all the benefit, profit, and advantage which he otherwise might and would have derived and acquired from the said last-mentioned bargain, but also [*285] confiding in the said last-mentioned promise and undertaking of the said defendant, on, &c. aforesaid, at, &c. aforesaid, expended divers large sums of money, in the whole amounting to a large sum of money, to wit, the sum of. in and about the shipping and conveying and insuring of the said last-mentioned goods and merchandize, and for other expenses incurred in and about the same goods and merchandize, and relating thereto, and thereby also the said plaintiff was put to great expense, loss, and inconvenience, in and about the sale and disposal of the same goods and Third merchandize, in the East Indies aforesaid, to wit, at, &c. And whereas count, also heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration like to se (p) That an implied warranty in general arises on the part of the seller, that the article sold shall be reasonably fit and proper for VOL. II. 28 the purpose for which it is sold. See 4 B. |