19 Johns. 290 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court. In the various cases which have been cited, it appears, abundantly, that when the action is founded on a warranty of the soundness of a chattel sold, a warranty must be proved; but it no wh ere appears, that it is necessary that the vendor should use the express words, that he warranted the soundness. If a man should say, on the sale of a horse, “ I promise you the horse is sound,” it is difficult to conceive, that this is not a warranty, and an express one too. Peake (on Evid. 228.) says, “ in an action on a warranty, the plaintiff must prove the sale and warranty.” “ In general, (he says,) any representation made by the defendant of the state of the thing sold, at the time of the sale, will amount to a warranty.” He adds, “ but where .the defendant refers to any document, or to his belief only, in such cases no action is maintainable, without proof, that he knew he was representing a falsehood.” In every action on a warranty, it must be shown that there was an express and di-, rect affirmation of the quality and condition of the thing sold, as contradistinguished from opinion, &c. and when that is made out, it would be an anomaly to require that the word warrant should be used. (Any words of equivalent import, showing the intention of the parties, that there should be a warranty, will suffice. In the present case, the plaintiff offered to prove what, under the circumstances,, might be an express warranty ; and that was for the consideration of the jury, under the advice of the Court. 2 Caines, 56. 3 Term Rep. 57. 10 Johns. Rep. 481.
The judgment must be reversed, and a venire de novo awarded to the Court below.
Judgment reversed.
