to be expected that the seller of goods will praise his own, if not deprecate his competitor's goods, and it is expected also that the buyer understands this disposition and weighs the words accordingly. The most common form of this "seller's praise" is the statement respecting the worth or value of the goods. Worth or value is usually a matter of opinion, upon which the buyer is as competent to decide as the seller, and it is well settled, therefore, that the expressions of the seller upon this subject are usually to be deemed neither false representation1 nor warranty. An exception exists where the seller has peculiar means of knowledge upon which the buyer relies.3 Representations as to cost, as has been seen, now usually stand upon a different footing from that of worth or value. They are ordinarily representations of fact. § 1246. The doctrine of immunity to seller's praise is one which is not to be pressed too far. The tendency of the later cases is to attach more consequence to the seller's affirmations than is given to them in the earlier ones, and it is usually a question for the jury whether his positive affirmations even of worth or value were, under the circumstances, to be regarded as the mere expression of his opinion or as such reliancebegetting representations as constitute a warranty.5 § 1247. Consideration for the warranty - Time of making it. The contract of warranty, like any other, requires to be supported by a sufficient consideration. Where the war deemed commendatory merely, may acquire a special commercial significance, and when so used may constitute warranties. See post, § 1336. 1 See ante, § 936. 2 See ante, § 1241. 3 Ormsby v. Budd, 72 Iowa, 80, 33 N. W. R. 457. persuasion to induce purchase, are 4 See ante, § 937. 5 Tewkesbury v. Bennett, 31 Iowa, 83; McDonald Mfg. Co. v. Thomas, 53 Iowa, 558, 5 N. W. R. 737; Wheeler ranty is made at the time of and as part of the contract of sale, the consideration which supports the latter contract suffices also for the former. Where, however, the warranty is not made as a part of the contract of sale, it is not binding unless made upon a separate and sufficient consideration.2 § 1248. It is not required that the warranty, to be sustained by the consideration for the sale, shall be made at any particular time in the negotiations. It will be sufficient, and the warranty will constitute a part of the sale, when, but only when, it is made at some time during the negotiations-after the treaty has been begun and before it is finally concluded.3 1 Standard Underground Cable Co. v. Denver Consol. Electric Co. (1896), 76 Fed. R. 422, 39 U. S. App. 340, 22 C. C. A. 258. 2 A warranty made after the sale is complete is not valid unless made upon a new consideration. Summers v. Vaughan, 35 Ind. 323, 9 Am. R. 741; Towell v. Gatewood, 2 Scam. (Ill.) 22, 33 Am. Dec. 437; Cady v. Walker, 62 Mich. 157, 28 N. W. R. 805, 4 Am. St. R. 834; Morehouse v. Comstock, 42 Wis. 626; Farmers' Stock-Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac. R. 978. The fact that it was made to induce the buyer to keep the goods is not enough. Fletcher v. Nelson (1896), 6 N. Dak. 94, 69 N. W. R. 53; White v. Oakes (1896), 88 Me. 367, 34 Atl. R. 175, 32 L. R. A. 592. Representations not forming part of the contract as finally consummated do not, as has been already seen, constitute a warranty. Ante, § 1225; Hopkins v. Tanqueray, 15 Com. B. 130; Zimmerman v. Morrow (1881), 28 Minn. 367, 10 N. W. R. 139; James v. Bocage (1885), 45 Ark. 284; Holmes v. Tyson (1892), 147 Pa. St. 305, 23 Atl. R. 564, 15 L. R. A. 209. In Bryant v. Crosby (1855), 40 Me. 9, talk had a month before the sale was held to be too remote to establish a warranty. 3 Where the negotiations extended through several days and occupied several interviews, it was held that a warranty on one of them was sufficient, though it was not repeated on the day the negotiations closed. Way v. Martin, 140 Pa. St. 499, 21 Atl. R. 428. To same effect: Wilmot v. Hurd, 11 Wend. (N. Y.) 584; Hobart v. Young, 63 Vt. 363, 21 Atl. R. 612, 12 L. R. A. 693. In Crossman v. Johnson, 63 Vt. 333, 22 Atl. R. 608, 13 L. R. A. 678, a warranty of a horse advertised to be sold at auction, repeated after the sale before payment or delivery, was held sufficient. (See ante, § 1227.) A private warranty relied on by the purchaser, but given to him privately before an auction sale, is not such a fraud on other bidders as to relieve the seller. Crossman v. Johnson, supra; Bronson v. Leach, 74 Mich. 713, 42 N. W. R. 174. A warranty of a horse after it had been bid off at auction, but before payment and delivery, is sufficient. $ 1249. Whether it was so made is usually a question of fact for the jury, the test being that already indicated, whether the whole series of transactions, including the warranty, was really one contract or several distinct ones.1 If the former, one consideration suffices for the whole; if the latter, each must be supported by its own consideration. § 1250. Construction of warranties - In general. The construction and interpretation of express warranties, whether written or oral, is for the court. If the warranty is in writing, or if the words are not disputed, the legal effect of the warranty is purely a question of law; but if the words are not agreed upon, or if the making of any warranty whatever is denied, then the intervention of the jury becomes necessary to determine this disputed question of fact, subject to the charge of the court as to what shall be the legal effect to be given to the language found to have been used. McGaughey v. Richardson, 148 Mass. 608, 20 N. E. R. 202, followed in Douglass v. Moses, 89 Iowa, 40, 56 N. W. R. 271. A general statement at a sale of horses by auction, that if any horse offered was unfit for single driving it would be mentioned when he was offered, constitutes a warranty that a horse bought, without any such statement being made, is fit for single driving. Ingraham v. Union Ry. Co. (1896), 19 R. I. 356, 33 Atl. R. 875. In Vincent v. Leland, 100 Mass. 432, the property had been delivered, but the price had not been fixed, and it' was held that a warranty on the day the price was agreed upon was sufficient. In Congar v. Chamberlain, 14 Wis. 258, the buyer of goods, previously contracted for without warranty, had a right to refuse to receive them because not delivered in time, and did refuse unless they were warranted. Held, a sufficient consideration. To same effect: Ohio Thresher Co. v. Hensel, 9 Ind. App. 328, 36 N. E. R. 716. An oral agreement at the time of the sale to warrant is sufficient to sustain a warranty reduced to writing a few days after. Collette v. Weed, 68 Wis. 428, 32 N. W. R. 753; McGaughey v. Richardson, supra. Warranty is not without consideration because, for convenience of parties, the execution of notes given for the goods was delayed. Falconer v. Smith, 18 Pa. St. 130, 55 Am. Dec. 611. A renewal of a warranty to a subpurchaser, based upon his agreement to buy certain other goods for use in connection with those first sold, is upon a sufficient consideration. Porter v. Pool, 62 Ga. 238. 1 Way v. Martin, supra; Crossman v. Johnson, supra. § 1251. Intent governs.- In construing the language the court will endeavor to ascertain and enforce the meaning which the parties themselves put upon the words which they used, and to do this the situation of the parties, the character of the subject-matter, and the other circumstances of the case must be taken into consideration.1 1 Thus, in Snow v. Shomacker Mfg. Co., 69 Ala. 111, 44 Am. R. 509, it appeared that a piano manufacturer wrote offering terms on his pianos and calling attention to a circular respecting them. On the front page of the circular, in conspicuous type, were the words: "Every piano warranted for five years." The manufacturer, in an action involving these words, contended that their meaning was "Every piano warranted [to be a piano] for five years; " but, said the court, "this, to say the least of it, is a strange use of language," and continued: "What is the proper construction of the words, Every piano warranted for five years?' We think no outside testimony is needed to show their import. Language must be interpreted with reference to the subject about which it is employed. Here the subject was a well-known musical instrument, now universally called a piano-forte-having reference to the softness and fullness of its tones. The excellence of such an instrument must depend on many things, and among them, chiefly, the goodness of the materials, and the skill and fidelity of the workmanship. If the instrument be so constructed and adjusted as to respond readily to the touch, to give forth pleasing and properly graduated sounds through the range of its keys, and the framework be so adapted and put together as to retain the strings in tension, and the mechanism does not yield or In furtherance of the in break in any part of it, these are certainly points of excellence. But these qualities depend much on the grade and costliness of the instru ment. We cannot think the word 'warranted,' without more, is definite enough to cover and guaranty the style or grade of the instrument. That must be determined by the purchaser. We think the true meaning is that, with reasonable and proper treatment and handling, it will not break or give way for five years. In other words, that it has no inherent defect, either of materials or workmanship, which will cause it to break or give way within five years after the sale. And by mechanical skill, we mean not merely that the parts shall be well fitted, and securely put and fastened together, they must be properly adapted, adjusted and harmonized to secure the proper effect. But the present warranty reaches only breaks, or giving way, occurring within the five years." In Richardson v. Brown, 1 Bing. 344, there was a sale of "a horse, five years old; has been constantly driven in the plough, warranted," and it was held that the warranty referred to soundness only. In Powell v. Horton, 2 Bing. N. C. 668, there was a sale "of mess pork. of Scott & Co.," and there was proof that in the market this meant goods manufactured by Scott & Co. and not simply goods purchased from Scott & Co., and the tention of the parties, words will be presumed to have been used in their plain and literal sense, unless the context plainly shows that some other signification was attached to them. For the same reason, if the parties have used technical words, words were held to be a warranty that they were of that manufacture. In Robson v. Miller, 12 S. C. 586, 32 Am. R. 518, it appeared that defend ant sold a fertilizing preparation in bags with tags attached which stated the chemical ingredients. He also used circulars, describing it as "of the highest standard," "prepared under my inspection and control," "introduced under my own name and guarantee," "compounded of purest materials," and referring by name to the chemist under whose supervision it was manipulated and tested, and "whose name gives a warrant for its high character and adaptation to our soil." Held, an express warranty, not dependent upon the correctness of the analysis. In McGraw v. Fletcher, 35 Mich. 104, there was an agreement that a diamond drill should be delivered "to be complete in everything for working," but it was held that this was not a warranty that the machine would do the work for which it was purchased, but simply that the machine, such as it was in principle and range of usefulness, should be delivered fully prepared and equipped to do what in principle it was capable of doing. But a warranty that a threshing machine would do as good work “as any other separator of its size in the United States" was construed to mean that it was reasonably fit to perform the work for which it was intended. Briggs v. Rumely Co. (1895), 96 Iowa, 202, 64 N. W. R. 784. In Hazlehurst Compress Co. v. Boomer Compress Co., 2 U. S. App. 139, 1 C. C. A. 102, 48 Fed. R. 803, there was a warranty that a cottonpressing machine would press cotton at the rate of sixty bales an hour. Held, that this could not be construed as a warranty that it would do so for ten hours a day, but only for a limited time. A warranty that a machine will do as good work as any other like machine on the market covers not only amount and quality of work, but also cost of operation. Vermont Farm Mach. Co. v. Batchelder (1896), 68 Vt. 430, 35 Atl. R. 378. But where the warranty of a boiler was that it would develop two hundred horsepower, it is not implied that it will do this with the most economy in the consumption of fuel. City Ry. Co. v. Basshor (1896), 82 Md. 397, 33 Atl. R. 635. On a sale of a separator and twelve horse-power with a warranty "that with good management the machinery is capable of doing a good business," it will be implied that there is a warranty that the machinery can be successfully operated with twelve horses. Aultman-Taylor Co. v. Ridenour (1896), 96 Iowa, 638, 65 N. W. R. 980. A warranty may be attached to an optional contract to return property if not satisfactory; as where a stallion is warranted to be a breeder, but the instrument also provides that if the buyer is not satisfied the horse may be exchanged for an |