St. Clair County IL Archives Court.....Ender, V Scott 1849 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 10:17 am Source: Reports Of Cases Illinois Written: 1849 Christopher Ender v. Philip Scott. Error to St. Clair. 1. Warranty — essentials on sale. In order to constitute a warranty, there must be not only an affirmation respecting the quality or condition of the thing sold, but the affirmation must be made with a view of assuring the buyer of the truth of the fact asserted, received and relied upon by him, inducing him to make the purchase.(1) This was an action on the case on an express warranty, brought by Scott against Ender, in the St. Clair circuit court. Heard at April term, 1849, before Underwood, judge, and a jury. A verdict was found for plaintiff for $15 00. A motion for a new trial was made and overruled, and judgment was rendered for plaintiff. The defendant sued out a writ of error. G. Koerner, for plaintiff in error, made the following points, and cited the authorities referred to. The evidence does not show any warranty. As to the general principles of warranty, see 2 Chitty on Pleadings, page 279, note g, pa. 679 and notes; Chitty on Contracts, 449-452; 5th Gilman, 37; 2d Scammon, 25. Words equivalent to a warranty must be used. Comyn's Digest, vol. 2, pages 265, 266, 274; 2d Starkie, 1237, note a. Nevertheless, in all contracts, in the absence of an express agreement to the contrary, the law implies a warranty that materials agreed to be furnished shall be suitable for the purpose, and that labor shall be performed with reasonable skill, Springdale Cem. Assoc. v. Smith, 32 Ill., 252; and, on a transfer of book accounts as unpaid, a warranty is implied they are unpaid, but, not that they are collectible, Robinson v. M'Neil, 51 Ill., 225; so, in the case of bank bills, commercial paper and choses in action, the vendor impliedly guarantees or warrants genuineness, Tyler v. Bailey, 71 Ill., 34. It is, however, the general rule of the common law that, in the absence of fraud of the vendor of personal property, vendee takes at his own risk, Misner v. Granger, 4 Gilm., 69; Beers v. Williams, 16 Ill., 69; Archdale v. Moore, 19 Ill., 565; Chi. Packing, etc., Co. v. Tilton, 87 Ill., 547; subject to exceptions, as, that the vendor by implication warrants to convey good title, Snow v. Baker, 3 Gilm., 268, and, if goods be sold by sample, that the bulk is equally as good as the sample, Misner v. Granger, 4 Gilm., 69. So, in executory contracts to deliver, a warranty is implied, the thing to be delivered shall be of fair and merchantable quality, Babcock v. Trice, 18 Ill., 420; Doane v. Dunham, 65 Ill., 512; so, the vendor of an article he is to manufacture or has manufactured is held to warrant his work executed in a workmanlike manner, Beers v. Williams, 16 Ill., 69; Archdale v. Moore, 19 Ill., 565, as where one sells a steam boiler, that it is of sound material and good workmanship, Beers v. Williams, 16 Ill., 69; and, in the case of a manufacturer selling an article well known in the market, which is not present or examined at the place and time of sale, it is implied he warrants it fair and merchantable, Chi. Packing, etc., Co. v. Tilton, 87 Ill., 547. See Sims v. Klein, Breese, 234, that, while fraud vitiates every contract, every false affirmation does not amount to a fraud, and, note 1, as to what is and what is not fraudulent as between vendor and vendee. If a warranty was made, the defect in question was one obvious to the senses, and did not bind vendor. 2 Black. Com., 165; Salkeld, 211. G. Trumbull, for defendant in error. Treat, C. J. This action was brought to recover damages, for the breach of a warranty on an exchange of horses. The court instructed the jury that, "If they believe from the evidence that the defendant represented in positive terms to the plaintiff, at the time of and before the exchange, that the mare was sound, except the distemper, such positive assertion will amount to a warranty, which, if false, the defendant is liable for in this action." The instruction was clearly erroneous. In order to constitute a warranty, there must be not only an affirmation respecting the quality or condition of the thing sold, but the affirmation must be made with the view of assuring the buyer of the truth of the fact asserted, and inducing him to make the purchase, which is so received and relied on by him. Hawkins v. Berry, 5 Gilman, 36. The instruction is not broad enough to embrace this definition of a warranty. The facts stated in it may all have been true, and still such a thing as a warranty not have entered into the minds of the parties. The plaintiff may not have intended the assertion as a proposition to warrant the soundness of the horse, nor the defendant have accepted and acted on it as such. The judgment of the circuit court is reversed, with costs, and the cause is remanded for further proceedings. Judgment reversed. ----------------- (1) Re-affirming the doctrine of the case, Hawkins v. Berry, 5 Gilm., 36, in which case, held that the declarations, or admissions, of vendor of a horse, some time after the sale, that he sold the animal for a sound one, is entitled to little, if any weight, in establishing a warranty; see, also, Towell v. Gatewood, 2 Scam., 22, the representation should be made at the time of sale, to constitute a warranty; if it be made subsequently a new consideration is essential. No particular form of words is necessary to make a warranty, nor is it essential the word warrant be used. It is, however, necessary that such expressions be used as show the intention of the party to bind himself to make good the quality of the articles sold and not a mere statement or expression of opinion as to the quality or character of the articles sold; i. e., to constitute a warranty the undertaking of vendor, as to a particular quality of the thing sold must enter into and form an essential element in the consideration of the bargain, Adams v. Johnson, 15 Ill., 345; Hanson v. Busse, 45 Ill., 496; Carondelet lr. W. v. Moore, 78 Ill., 65; Thorne v. M'Veagh, 75 Ill., 81; Van Buskirk v. Murden, 22 Ill., 446; see Hawkins v. Berry, 5 Gilm., 36. As to whether the words used or declaration made amount to a warranty is a question of intention. Was the affirmation or representation made with the intent of thereby warranting the quality of the thing sold, or was it a mere expression of vendor's opinion, Wheeler v. Reed, 36 Ill., 81; but whenever a representation is positive and relates to a matter of fact it constitutes a warranty, Robinson v. Harvey, 82 Ill., 58; Sparling v. Marks, 86 Ill., 125; Towell v. Gatewood, 2 Scam., 22, if the representation be relied on by vendee and it induces the purchase, Reed v. Hastings, 61 Ill., 266; but, if the representation be a matter of opinion or fancy, it will not amount to a warranty, unless there are other declarations which leave no doubt of the intent to warrant, Reed v. Hastings, 61 Ill., 266; Shackleton v. Lawrence, 65 Ill., 175. Additional Comments: Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 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