8 Cow. 25 | Court for the Trial of Impeachments and Correction of Errors | 1827
The court below erred in charging the jury, that the words spoken by Duffee amounted to a warranty, although neither of the parties understood them so at the time. The words used may amount to a warranty, or may be matter of opinion merely; and it is for the jury to determine, from all the circumstances of the case, how they were understood and intended by the parties in-this-case.
In Chapman v. Murch, (19 John. 290,) it is ¡said by Spencer, Oh. J., it'is-not necessary, to constitute a warranty, 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, he continues, the plaintiff offered to prove what, under the circumstances, might he a-n express warranty.; and “that was for the consideration of the. jury under the advice of the court.” In Swett v. Colgate, (20 John. 203,) Woodworth J., in .delivering the opinion .of the court, uses nearly the same language. He says there are no particular words prescribed by law, to make out a warranty: .but
The judgment must be reversed; and a venire de novo issue.
judgment reversed.
No particular form of words is necessary to constitute a warranty; but an assertion or affirmation concerning the thing sold, to be evidence of a warranty, should be positive and unequivocal—one which the buyer relies on; which is understood by the parties as an absolute assertion, and sot the mere expression of an opinion. (4 Cowen, 440; vid. also 3 T. R. 57, 8; 19 John. 290; 20 id. 203, per Woodworth, J;. 3 Bibb, 35; 7 Searg. & Rawle, 482, per Duncan, J.) Where an animal is sold by a bill of sale thus: A. sells to B. such an animal, “ being sound and free from "all diséasé;” this is not a mere matter of description, but a warranty of soundness. (10 John. 484.) So, where an animal was sold as “ about 11 years old, sound and healthy, and I do by these presents further covenant and agree to warrant the right and defend the title of the said animal;” this was held to be
■ The general rale is, that whatever a seller represents-at the time of sale is a warranty. If a person, at-the time of his selling a horse, say, “I never warrant, but,he is sound as far as I know;” this is a qualified warranty, and the purchaser may maintain an action upon it, if he can show .that the horse was unsound to the knowledge of the seller. 5 id. 124; 4 Car. & Payne, 45.) , .
In actions upon a contract of warranty,- though it is usual to allege an express and formal promise,and undertaking in a declaration, it is not necessary that the proof should literally correspond with what is set out; for any affirmation at the time of the sale, intended as a warranty by the affirmant and relied upon as such by the purchaser, will,support the allegation. Thus, where the declaration- averred that .the defendant .undertook that the horse he sold to the plaintiff was quiet, &o.; held, that proof that the defendant said, at the time of sale, “ You may depend upon it that the horse is perfectly quiet,” &c., will support the averment. (Cave v. Coleman, 3 Mann. & Ryl. 2; and see Chapman v. Murch, 19 John. R. 290; Sweet v. Colgate, 20 John. R. 203; Bacon v. Brown, 3 Bibb, 35; Jackson v. Witherell, 7 Serg. & Rawle, 482; Cramer v. Bradshaw, 10 John. R. 484; Gilchrist v. Mann, 2 Car. Law Repos. 667; Erwin v. Maxwell, 2 Murph. 245; Robers v. Morgan, 2 Cowen’s Rep. 438.) And an allegation that the defendant warranted a horse to be not over seven years old sustained in substance by proof of a warranty that he was seven years old the spring next after the sale. (Henry v Henry, 1 Chip. Rep. 265.)