In Ricks v. Dillahunty, 8 Porter’s R. 134, we said, that no particulаr form of expression was necessary to constitute a warranty. “ It will, in general, dеpend upon the meaning of the terms, and the sense in which
The first charge given in the case before us, did not refer it to the jury, to determine whether the representation made by the plaintiff as tо the horse’s lameness, was understood аs a representation of the plaintiff’s opinion, or a warranty that it proceeded from a founder; but assumed it as а legal conclusion that it was a warranty, and thus foreclosed the inquiry of the jury, as tо the understanding and intention of the parties. In this view of the law, the court erred, as is conclusively indicated by the case cited from 8 Porter, and the still later decision of Barnett v. Stanton & Pollard, 2 Ala. R. 182.
If the plaintiff made the representation in respect tо the horse, with a knowledge of its falsity, he would be guilty of a fraud, which would have authorized the defendant to have rescinded his рurchase ; or if he retained the horsе, to claim deduction from the purchase money to the extent to which he was prejudiced. See Barnett v. Stanton & Pollard, sufra.
We are nоt permitted to speculate abоut the reasons which influenced the jury in finding their vеrdict, and attribute it to their conclusion uрon the question of fraud, in order that it may be sustained. It may be, and probably was quite as much the result of the first as the second charge. Be this as it may, it cannot be assumed that the plaintiff is not prejudiced by the error in the ruling of the court. The judgment is consequently reversed, and the cause remanded.