vendor and vendee (Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571; Foster v. Caldwell, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Houghton v. Carpenter, 40 Vt. 588; Pennock v. Stygles. 54 Vt. 226); or intended by the parties as a part of the contract (Richardson v. Grandy, 49 Vt. 22); or have formed the basis of the contract (Beals v. Olmstead, 24 Vt. 114, 58 Am. Dec. 150; Drew v. Edmunds, 60 Vt. 401, 15 Atl. R. 100. 6 Am. St. R. 122)."

Similar views have been announced in Illinois. Ender v. Scott, 11 Ill. 35; Adams v. Johnson, 15 Ill. 345; Kohl v. Lindley, 39 Ill. 195, 89 Am. Dec. 294; Hanson v. Busse, 45 Ill. 496. But that the court in Illinois is in accord with the rule generally prevailing is shown by such cases as Reed v. Hastings, 61 Ill. 266.

And in Indiana. House v. Fort, 4 Blackf. 293, where it is said: "There was no warranty in terms; and if by the language used a warranty was intended, that intention was to be proved."

And in North Carolina. Erwin v. Maxwell, 3 Murphey, 241, 9 Am. Dec. 602: Ayres v. Parks, 3 Hawks, 59; Foggart v. Blackweller, 4 Ired. 238; but compare with McKinnon v. McIntosh, 98 N. C. 89, 3 S. E. R. 840.

There are expressions to the same effect in Bagley v. Rolling Mill, 21 Fed R. 159.

1 Notwithstanding the rule laid down in the cases referred to in the preceding note, there can be no doubt, as is pointed out by Dewey, J.,

in Stone v. Denny, 4 Metc. (Mass.) 151, that "the courts have in their later decisions manifested a strong disposition to construe liberally in favor of the vendee the language used by the vendor in making any affirmation as to his goods, and have been disposed to treat such affirmations as warranties whenever the language would reasonably authorize the inference that the vendee so understood it."

In Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. R. 595, Earl, J., says: "It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a war ranty. If the contract be in writing and it contains a clear warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares; and so, if it be by parol, and the representation as to the character or quality of the article sold be positive, not mere matter of opinion or judg ment, and the vendee understands it as a warranty, and he relies upon it, and is induced by it, the vendor is bound by the warranty, no matter whether he intended it to be a warranty or not. He is responsible for the language he uses, and cannot escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee." To same effect: Fair

1 In Horton v. Green (1872), 66 N. C. 596, it is said: "Of necessity, in verbal contracts, says Chief Justice Ruffin, a greater latitude must be allowed to evidence to establish the words and the meaning of parties. The evidence may consist of everything which tends to establish that the vendor meant to convey the impression that he was binding himself for the soundness of the article, and that the vendee relied on what was passing as a stipulation.' Among these circumstances, even the tones, looks, gestures and the whole manner of the transaction, with all the surroundings, would be competent evidence for the jury to consider in making up their verdict." In Baum v. Stevens (1842), 2 Ired. (N. C.) 411, the controversy was whether there was a warranty of soundness of a slave named Jim. Several slaves were sold at auction, and when the one prior to Jim was offered, the seller said that he did not warrant that negro, as he was unsound, but when Jim was offered he said: "Here is a young, likely, healthy negro; what is bid for him?" Held to be a question for the jury whether this language and conduct did not amount to a warranty of soundness.

In Ingraham v. Union R. Co. (1896), 19 R. L. 356, 33 Atl. R. 875, where horses were being sold by auction,

The

and a general statement was made that, if any horse offered was unfit for single driving, it would be mentioned, it was held that a sale of a horse without stating the contrary carried with it by implication a warranty that it was fit for single driving.

2 Where goods of a given kind have previously been sold and the buyer orders more, there is an implied warranty that they shall be of the same kind as those formerly sold. Bagley v. Rolling Mills, 21 Fed. R. 159.

3 That the language of circulars, and the like, describing the goods, may be so referred to as to constitute part of the contract, see Phelps v. Whitaker. 37 Mich. 72; Palmer v. Roath (1891), 86 Mich. 602, 49 N. W. R. 590; Latham v. Shipley, 86 Iowa, 543, 53 N. W. R. 342; Robson v. Miller, 12 S. C. 586, 32 Am. R. 518; Snow v. Shomacker Mfg. Co., 69 Ala. 111, 44 Am. R. 509; Power v. Barham, 4 Ad. & El. 473,31 Eng. Com. L. 114; Ormsby v. Budd, 72 Iowa, 80, 33 N. W. R. 457; Boothby v. Scales, 27 Wis. 626; Milburn Wagon Co. v. Nisewarner, 90 Va. 714, 19 S. E. R. 846; Landman v. Bloomer (1898), 117 Ala. 312, 23 S. R. 75. But it must actually enter into the contract. Enger v. Dawley, 62 Vt. 164, 19 Atl. R. 478. And the mere showing of testimonials is not enough

to amount to a warranty in accordance with their statements in the absence of any evidence that the seller adopted their language as his own. Richey v. Daemicke, 86 Mich. 647, 49 N. W. R. 516.

Warranty may be made by referring to a warranty contained in separate written instrument, but it will be an oral warranty. Aultman v. Shelton, 90 Iowa, 288, 57 N. W. R. 857.

In Grieb v. Cole (1886), 60 Mich. 397, N. W. R. 579, 1 Am. St. R. 533, it appeared that the plaintiff, Grieb, who was an implement dealer, had a general printed form of order which could be used for any kind of an implement, blanks being left for inserting the names, terms and description of the implement. On the back of the order was a printed warranty having blanks in it for the insertion of the buyer's name and the kind of implement, but evidently referring to the machine which might be ordered on the other side. The order form also referred to "the warranty hereon indorsed." This warranty had Grieb's name printed at its foot. Cole ordered of Grieb a mowing machine, and the order was properly filled in upon one of these order blanks, but the blanks in the warranty on the back of the order were left unfilled. In an action to recover the price, the defendant objected to the introduction of the order and

warranty on the ground that they were imperfect and incomplete instruments, but the court held that the order and the warranty so evidently referred to each other that the order supplied the facts to which the warranty applied and made it valid, though if standing alone it would have been insufficient. It was also held that the plaintiff by his use of the printed forms had made the printed signature his own.

In De Witt v. Berry (1889), 134 U. S. 306, 33 L. ed. 896, 10 Sup. Ct. R. 536, it appeared that by the terms of the contract of sale the goods were to be "exactly the same quality as we make for the DeWitt Wire Cloth Company." The buyers insisted that this made the contract with the latter company a standard of quality, but the court said that the language used did not mean that the goods should be "exactly the same quality as we have contracted to make for the De Witt Co.," but simply of "exactly the same quality as we make for the De Witt Co.," and therefore excluded reference to that contract.

1 Where a contract of sale upon a certain warranty fails, and the buyer then makes a new proposition in writing, silent as to warranty, which is accepted, the warranty in the previous contract is not incorporated. Byrd v. Campbell Printing Press Co., 90 Ga. 542, 16 S. E. R. 267.