Childs v. Emerson

NORTONI, J. (after stating the facts.) — The instructions given by the learned trial court are not criticised on this appeal. The only argument advanced in this-court for a reversal of the judgment is that the court refused a peremptory instruction to the effect that there was no evidence of a warranty in the case on which respondent could recover. This argument is no doubt predicated upon the theory that the letter of appellant did not contain express words of warranty. It is well settled that the word “warranty” is not essential, nor is any other particular phraseology necessary to constitute a warranty in cases of this kind. “It is sufficient if there be a representation of the state of the thing sold, or a direct, positive, unequivocal, and express affirmation of its quality and condition, being part of the consideration of the sale, and showing an intention to warrant or make good the quality of the thing sold, and so understood and relied upon, instead of a mere recommendation or expression of an opinion leaving the buyer to understand that he must still examine and judge for himself.” [Carter v. Black, 46 Mo. 384; Anthony v. Potts, 63 Mo. App. 517; Graff v. Foster, 67 Mo. 512.] [676] Benjamin in Ms work on Sales, vol. 2, (3 Ed.), sec. 817, says: “No special form of words is necessary to create a warranty. It is nearly two hundred years since Lord Holt first settled the rule, in Cross v. Gardner and Medina v. Stoughton, which Buller J., in 1789, laid down in opinion given by him in the famous leading case of Pasley v. Freeman, as follows: ‘It was rightly held by Holt, C. J., and has been uniformity adopted ever since, that on affirmation at the time of a sale is a warranty, provided it appears in evidence to have been so intended.’ ” [Cross v. Garnet, 3 Mod. 261; Medina v. Stoughton, 1 Lord Raym. 593; Pasley v. Freeman, 3 Durnford & East 51.] The point of distinction being as to whether the representations during the treaty of sale are direct and positive affirmations as a matter of fact, or whether they are the mere expressions of opinion. It is always after all, a matter of contract between the parties and the decisive question is the real intention as to whether the affirmation of fact was made for the purpose of inducing the purchase in the one instance and whether it was relied upon by the purchaser in the other. [Samuels v. Guin’s Est., 49 Mo. App. 8; Anthony v. Potts, 63 Mo. App. 517; 2 Benjamin on Sales (3 Ed.), sec. 817; Pasley v. Freeman, 3 Durnford & East 51; Carter v. Black, 46 Mo. 384.] Let us examine the facts under the light of this rule. In appellant’s proposal to sell the jack, he says: “My jacks are all jet black with white points 15 to 16 hands high . . . you trust to my honesty to select you a good jack and I will guarantee you will get what you want. I have a fine big five-year-old jack that has proved himself a grand breeder, sure foal getter, I will sell you for $800; he is 15 1-2 hands high, large smooth fiat bone, long tapering ears, stands up like a fine coach horse; price $800. His moneys worth is $1200.00 to $1500.00.” These are direct, positive and unequivocal affirma [677] tions of fact, made by the seller in possession of the animal during the treaty of sale to a person in a foreign State who had no means of knowledge other than the representations contained in the letter. It is clear that they were made for the purpose of inducing the purchase. That they were relied upon and induced the purchase is beyond question, for the respondent’s reply shows that he described the identical animal depicted to him in appellant’s letter, and proposed to purchase the same at the price named, provided the terms of $400 cash and $400 note was satisfactory. The proposition was accepted by appellant, and upon his notification to the respondent to that effect the contract of purchase was thereby closed, and the positive affirmation of fact mentioned entered, as was manifestly intended by the parties, into its consideration ahd became of the very vitals of the contract itself. Under these conditions it amounts to an express warranty, that the jack was as represented. For it is elementary that a warranty is express “where the seller makes some positive representations or affirmation with respect to the article to be sold pending the treaty of sale, upon which it is intended that the buyer shall rely in making his purchase.” [Biddle on Warranties for the Sale of Chattels; Danforth & Co. v. Croockshanks, 68 Mr. App. 311; Voss v. McGuire, 18 Mo. App. 477; Long Bros. v. J. K. Armsby Co., 43 Mo. App. 253.] For it is well settled as said by Lord Abinger in Chanter v. Hopkins, 4 M. & R. 399, “that it is an utter fallacy, when an article is described, to say that it is anything but a warranty or a condition- precedent that it should be an article of that kind, and that another article might be substituted for it. As he said, if you contract to sell peas, you cannot oblige the party to take beans.” [2 Benjamin on Sales (3 Ed.), sec. 773.] It has been frequently determined by the courts of this State that a sale by description imparts a warranty that the property sold is of that description. [Mur [678] phy v. Gay, 87 Mo. 535; Long Bros. v. J. K. Armsby, 43 Mo. App. 253; Voss v. McGuire, 18 Mo. App. 477; Graff v. Foster, 67 Mo. 512.] As to whether or not appellant’s affirmations amounted to an undertaking of warranty nms a question of fact for the jury, which was properly submitted by the court, and the verdict is abundantly supported by the evidence. The judgment is clearly for the right party and it will be affirmed and it is so ordered.