STUCLEY

BAILY. [ *416 ]

[ *417 ]

warranty; there is no warranty that he should sell him peas; the contract is to sell peas, and if he sends him anything else in their stead, it is a non-performance of it." Therefore the question is whether there was a warranty within the true meaning of the definition given by Lord ABINGER.. I think the plaintiff's case was defective, because it was incumbent on him to prove a sale, and, if no bill of sale had been executed, no action could have been maintained for a breach of warranty. It may be that there would have been a breach of the contract to sell, but that would be no ground for an action in respect of a breach of warranty. Nothing is more common than an action in respect of a contract to sell land. Now, if a contract to sell land contained an express undertaking that the land was of a particular quality, or that there was a coal mine under it, if the vendor refused to complete his contract, an action would lie against him for not selling the land, not for a breach of the undertaking that it was of a particular quality or had a mine under it.

The case of Hopkins v. Tanqueray (1) is against the plaintiff's view. I agree with what was there said by MAULE, J., and CROWDER, J. CROWDER, J., said: "A representation to constitute a warranty must be shown to have been intended to form part of the contract." Here the defendant never intended that his statement as to the soundness of the masts should form part of the contract. For these reasons I think there has been a miscarriage, and that there ought to be a new trial.

With respect to the question whether, after the bill of sale was executed, the plaintiff could insist upon a warranty, I express no opinion. If it should arise on a future trial, I should be glad if it were submitted to a court of error. The question is whether, where parties have executed a *deed to carry out an agreement, and it is found that in the course of the negotiations for that agreement something has been said which led to it, but which has not been embodied in the deed, they can fall back upon the agreement. It would seem that if that could be done it would affect a man's title, for, instead of having a deed as evidence of it, his title would be affected by what took place before the deed was executed. That is undoubtedly a most important point, and I should regret if it were to be ultimately decided by this Court; it is a proper question for a court of

error.

BRAMWELL, B.:

I am also of opinion that the rule ought to be absolute. As to the last point adverted to by my brother MARTIN, I say

(1) 100 R. R. 271 (15 C. B. 130).

nothing. With respect to the two other points, I think it is due to the learned Judge who may be called upon to try the case again, to state my view of them.

I agree with my brother MARTIN that there is no evidence of a warranty. I also agree with the definitions he has referred to; and that a representation, to constitute a warranty, must form part of the contract. No doubt there may be a warranty without the word "warrant" or even "undertake" being used: if it can be collected from the documents between the parties, or if any reasonable person would understand, from what was said by them, that they intended that there should be a warranty, there would be one. Now I cannot think that there was any warranty here, but supposing there was any evidence of it, it is manifest that the whole facts ought to be inquired into and the question left to the jury. The evidence begins with a correspondence between Captain Main and Captain Williamson about the purchase and condition of the vessel. They afterwards met and had some conversation about it, and Captain *Main states in his evidence: "I said I did not like the yellow masts. He said they were very stiff and sound. I told him I must have them overhauled or examined by a shipwright." On cross-examination he says: "I told Captain Williamson the wedges must be taken out as well as the mast-bolts for the purpose of examination." Now, suppose Captain Williamson had said in reply, "If you want the wedges taken out, you must have a shipwright," I cannot understand why that would not have been evidence to be laid before the jury. If facts antecedent to the contract may be given in evidence, so also may acts subsequent to it, for they would be evidence of what exists. incidentally, and therefore, although subsequent facts could not be given in evidence to alter the contract, they might for the purpose of explaining the antecedent facts.

I wish to make another observation upon these letters for the purpose of justifying the opinion I entertain, that they do not contain any warranty. After the interview to which I have referred, Captain Williamson wrote to Captain Main: "I have had a good overhaul at the masts, and find they are all as sound as ever.' Then the defendant in his letter to Captain Main says: "You must, I think, be under some very great error in thinking 500l. would be required to be spent on the Czarina before she would be fit for sea." He does not say: "It cannot be," but merely, "You have expressed an opinion, and I think you are mistaken." He then goes on: "Beyond the usual painting, caulking, chintzing, &c., and perhaps a little repair to the copper, I don't really think there are any necessary repairs."

STUCLEY

v.

BAILY.

[ *419 ]

[ *420 ]

Is not that the language of a man who is doing nothing more
than saying, "to the best of my judgment and belief you must
be wrong, because I do not think that any other repairs are
necessary"? He goes on to say "Personally I know her sea-
going qualities, and how thoroughly sound *she is and how tight
in every part." That means nothing more than this: "She
has no manifest defect: she has not dry rot in any place in
which I ever looked." Suppose he had been asked: "Do you
undertake to say that she has no dry rot?" He would reply:
"No, I will not." Then if the other said, "I will not buy the
vessel unless you do," he would say, "I will not undertake so as
to render myself liable to damages if it is not so." He only
undertakes so far as his personal knowledge and belief extends.
Then, in the next letter, the defendant says: "I am sorry you
still fancy the Czarina will require so much money laid out upon
her, and still must say that I cannot help thinking her refitting
will not be nearly so costly as you may seem at present to
imagine." What is that but an interchange of opinion between
the parties? He then says: "Her masts have been examined,
and found as sound as when put in." That is merely a state-
ment that the masts had been overhauled by somebody who was
satisfied that they were sound. In answer there is the plaintiff's
letter, in which he says: "Yesterday, I went to Chatham, to
see the Czarina for the first time. I consider she requires all
the repairs mentioned by Captain Main, painting throughout;
but she is a fine vessel, and appeared to be well cared for."
Under these circumstances, it seems to me that it cannot for one
moment be supposed that the defendant entered into any under-
taking that the vessel was sound to his knowledge. It is in
vain to go through the cases on the subject. No doubt, a repre-
sentation made at the time of the contract may amount to a
warranty. If a man, when he sells a horse, says it is sound,
that is a matter of fact; and when he makes a positive state-
ment of that kind, he undertakes that he knows the fact; and
if it is not so, he tells an untruth. So, if he does not know
the fact, he equally tells an untruth, and there is no reason why
he should not be responsible. I should be more inclined to
hold a person liable upon a representation as to a matter of
fact of that kind than as to a matter out of his ordinary know-
ledge. For instance, suppose a man says a horse is sound, and
it turns out that it has some defect which it was impossible that
he could have known, I doubt whether his language ought to be
interpreted as a warranty.

For these reasons, I am of opinion that these letters do not contain any evidence of a warranty. But, upon the supposition

that they do, it is clear to demonstration that where the alleged warranty is not found in a document which is the contract between the parties, but depends upon the construction of a series of letters and extrinsic circumstances, inquiry must be made into all the surrounding facts, what the parties said and what they did, the facts anterior to the contract, contemporaneous with the contract, and posterior to the contract. Therefore, it must be submitted to a jury to say, whether, upon the whole evidence, they find that there was a warranty.

CHANNELL, B.:

I

I am also of opinion that the rule ought to be absolute. entirely concur in the views expressed by the LORD CHIEF BARON and my brother MARTIN. Some points occurred upon which I express no decided opinion. It seems to me clear that the plaintiff must establish, first, that there was a sale, and next, that the letters not only constitute a contract, but also contain a warranty. If I were called upon to express a definite opinion, I should agree that the letters do not establish a warranty; but as the case must go down on a new trial upon another ground, it is not necessary to decide that point.

Now, without saying that these letters do not create the contract (though I am not certain that they do), I am of opinion that the learned Judge was not right in rejecting *the evidence. But assuming that all that occurred in these letters was preliminary to the contract, and that the sale was effected by the bill of sale, it was a question for the jury whether it proceeded upon the terms contained in the preliminary contract. Where goods are put up for sale by auction under certain conditions. prescribed in the particulars of sale, and a person bids, but says, "I will not adopt condition No. 1 or No. 2," he does not purchase under the conditions mentioned in the particulars, and it becomes a question whether he has bound himself by the terms of the sale. I agree with my brother MARTIN that it would have been more satisfactory if the particular question had been taken down in writing, so that it might have clearly appeared whether or no it was admissible: but, as I understand the nature of the evidence offered, I think that the learned Judge ought to have received it, in order to determine whether the bill of sale proceeded on the preliminary contract contained in the letters.

CRESSWELL v. HEDGES.

Rule absolute.

(1 H. & C. 421-429; S. C. 31 L. J. Ex. 497; 8 Jur. N. S. 767; 10 W. R.

777; 7 L. T. N. S. 70.)

STUCLEY

v.

BAILY.

[ *421 ]

1862.

June 11.

[Obsolete pleading.]

1862.

June 17.

1862. June 14.

[ 435 ]

[ *436 ]

BAYLEY v. GRIFFITHS.

(1 H. & C. 429-435; S. C. 31 L. J. Ex. 477; 10 W. R. 798.) [Obsolete practice as to interrogatories.]

REEVE v. YEATES (1).

(1 H. & C. 435-439; S. C. 31 L. J. M. C. 241; 10 W. R. 779.)

To constitute an offence under the Vagrancy Act, 1824 (5 Geo. IV. c. 83), s. 4, there must be a running away and deserting a wife or child, and a chargeability to a parish by reason of it. Therefore it is sufficient, under the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), s. 11, if the information is laid within six months of the chargeability, although the running away took place more than six months before the information was laid: per POLLOCK, C. B., and MARTIN, B. Dissentiente, BRAMWELL, B.

PURSUANT to the 20 & 21 Vict. c. 43, the following case was stated by justices of the city of Worcester for the opinion of this Court:

At a Petty Sessions of the peace for the city of Worcester, one Edwin Yeates was brought before the said justices, under a warrant, charged in and by a certain information, laid on the 17th of March, 1862, by Reeve, the appellant, by direction of an order of the board of guardians of the Worcester Union, "for that Edwin Yeates did, on the 20th day of July, 1861, run away and leave his lawful wife Eliza Yeates, whereby she the said Eliza Yeates, and her infant child, did, on the 13th day of March, 1862, become chargeable to the parish of St. Helen, in the Worcester Poor Law Union, in the said city; and had continued and were then so chargeable to the said parish, contrary to the 4th section of the statute 5 Geo. IV. c. 83, and the said charge having been heard by us, we dismissed the said information, upon the grounds and for the reasons hereinafter stated.

At the hearing of the information, it was proved that the said Edwin Yeates did, on the said 20th of July, 1861, run away and leave his wife, Eliza Yeates, who was then resident in the parish of St. Helen, in the city of Worcester. That the said Eliza Yeates was then in part supported by her friends and in part by her labour, but ultimately, in consequence of her husband so running away, she and her infant child became, on the 13th of March, 1862, chargeable to the said parish, and were, at the time the information was laid, still so chargeable and receiving relief therefrom; and that afterwards, on the 17th of March, the said information was laid by the said Reeve, as such officer duly authorized in that behalf.

It was then contended, by the attorney who appeared on behalf (1) Heard v. Heard [1896] P. 188, 65 L. J. P. 111; Ellis v. Ellis [1896] P. 251, 65 L. J. P. 124, 75 L. T. 390.