after the stock or the material is destroyed out of which he expected to perform his contract, but there was no mutual stipulations that the goods should come from such particular stock or material, then there cannot be said to be any destruction of the subject matter of the contract, for the seller may still perform by selecting out of other stock or material, or by going upon the market to buy. A and B contract for the sale by A to B of A's horse "Ely". After the contract to sell, but before the actual sale has taken place, the horse dies without A's fault. This occurrence terminates the contract between the parties. If the horse had died after title passed, the loss would be B's, even though A still had possession.

A contracts with B to sell 1000 bushels of May wheat. No particular lot of wheat is specified as the subject matter of the sale. A has 1000 bushels on hand. Before the sale takes place this 1000 bushels is destroyed. A is still bound to deliver 1000 bushels of wheat.

What has been said of total destruction is true also in case of part destruction or material deterioration.

Yet the law allows the buyer in such case to take the goods remaining or the deteriorated goods, paying the price therefor he would have paid had the contract been performed, or if the contract is divisible, that is, made up of parts so that the price of the whole is plainly referable to the number of unit parts, then he may have the contract price proportioned to the part taken.22

22. Uniform Sales Act, Sec. 8 (2).

CHAPTER 4.

THE CONTRACT'S OBLIGATIONS AS AFFECTED BY WARRANTIES.

Sec. 15. DEFINITION OF WARRANTY. A warranty is a part of the contract of sale. It consists in the assertion of some fact concerning the goods put forth to induce the contract and which did induce it and whose truth is regarded by the buyer as essential to the seller's performance of his contract. But if an assertion made by the seller does not so enter into his contract as to become a part thereof it is not a warranty, and its truth is immaterial. Warranties are express or implied.

When there is a contract of sale, the buyer may make assertions in respect to the goods. He is indeed very prone to do this, for it may be by such assertions that he is able to close the transaction. It is a matter of common knowledge that a seller will "puff his wares." Indeed he may make affirmations without any words spoken. Thus by his very possession of the goods and by the fact that he offers to sell them, he affirms he is the owner of them.

Has the buyer any remedy if these assertions are false? Or does he act entirely at his own risk? Suppose the seller states that the stone he offers to sell is a diamond, and it turns out paste, will the court say that he can return the stone, or have his money back, or his damages? Or what if the seller thought it was a diamond-is this material? The law is that some assertions in respect to

goods sold cannot be broken without penalty because they become a part of the contract, and they become so irrespective of the seller's belief whether they were true or false.

We have then to inquire, what assertions in respect to quality, title, fitness, value, etc., become a part of the contract, and which ones do not.

Generally speaking, we may say that whatever assertion is made for the purpose of being relied upon, and in its nature is worthy of belief, and is relied upon, becomes an essential term in the contract of sale, and if false, there is then a breach of contract, for which the buyer has his remedy.

We have already indicated that warranties are express and implied. First, let us consider express warranties, and then those that are implied from the circumstances.

A. Express Warranties.

Sec. 16. WHAT CONSTITUTES EXPRESS WARRANTY. "Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods nor any statement purporting to be a statement of the seller's opinion only shall be construed a warranty." 22

We see from the above language that it is largely a question whether a statement was given and taken as a matter of fact or a matter of opinion which is decisive whether the assertion is or is not a warranty. It is well settled law that a mere

22. Uniform Sales Act, Sec. 12.

23

opinion or prediction on the part of the seller is not a warranty, for the plain reason that the buyer ought simply to receive it as such. He may indeed be influenced by it, but, after all, he should know that it may or may not be true. An opinion is but an opinion; it is a matter resting alone in judgment. It may be based upon facts but it does not purport to state a fact. If I say that a horse is sound I state a fact which may be true or false and this therefore constitutes a warranty if relied upon. But if I say that a horse is considered sound, or that I believe him to be sound, that is a different matter. 23a So if I predict a future event, it is a mere opinion. No one can foretell the future. I may say stocks will rise, oil wells will yield, gold mines will pay, and though I be the best judge on earth of those events, still every one must know that I am only giving my opinion. An express warranty, then, must be the statement of a fact concerning the goods meant to be relied upon, and which is relied upon. If does not matter that the seller speaks as he believes. He takes it upon himself that the fact is true. It he says a

stone is a diamond, his contract is that it is a diamond, and the buyer is entitled to rely on his statement. And it is not necessary that the parties use the word "warrant" or similar word.

To indulge in words of praise concerning goods is allowable, though such words be extravagant, as long as there is no misstatement of fact. "That horse is the best in the country;" "that dog is the best bird dog a man ever owned;" and similar statements, are considered "dealer's talk."

23. Hobart v. Young, 63 Vermont Reports, 363. 23a. Id.

A buyer must purchase in reliance on the warranty. For this reason a general warranty is not taken to cover obvious and known defects. If a horse is warranted sound, and he has, known to the buyer, a blind eye, the warranty cannot be taken as referring to the eye. 23b Yet one who has taken a general warranty need not search for defects. He may rely upon his warranty.

If a

Sec. 17. WHETHER ALLEGED ORAL WARRANTIES PROVABLE IF CONTRACT IN WRITING. contract to sell or a sale is completely reduced to writing alleged oral warranties cannot be introduced for the purpose of changing or adding to the contract as it appears in the writing.

If the contract of sale has been reduced to writing complete upon its face, statements made orally cannot be regarded as constituting warranties and therefore will not be received in evidence, for it is to be considered that the parties meant the writing to be the expression and evidence of their act. But if the writing shows on its face that it was but an incomplete memorandum and was not regarded by the parties as expressing the entire act, then such oral warranties as were really a part of the contract could be proved as though the entire transaction had been oral, unless the statute of frauds was applicable to the particular case (there being no part delivery or payment).

Of course this reasoning has no application to implied warranties which exist regardless of the form of contract, except that if the writing covers

23b. McCormick v. Kelly, 28 Minn. 135. (After Kelly had used a harvesting machine and knew its defects he purchased it and claimed a warranty covering those defects. Held, it did not cover them.)