
    M’Gregor vs. Penn.
    A warranty of personal property must nofne’cessarily bé'proved by direct testimony,* but may be inferred from what took place at and subsequent to the sale.
    No specific word» are necessary to create a warranty;- any words-which show that the party intended to warrant are sufficient.
    Whether the words used were intended as a warranty, is a question for the jury ‘ to settle from the proof in the case; and the jury having foand the words, <lI recommend this horse as having one good eye,” to be a warranty, the court will not disturb the verdict.
    This is an' action on the case brought to recover damages for a breach of warranty', as to the soundness of a horse sold by the plaintiff in error, to the defendant. The facts of the case, as shown, by the bill of exceptions, are, that M’Gre-gor had purchased the horse the day before he sold him to Penn; that he informed him, that he had purchased him as a horse with-One good eye, and that he recommended him as having one good eye. Penn purchased the horse, and on the same day thereafter it was discovered, that the eye which was supposed to be good was much swollen and discharging water. It got worse rapidly, so that in a few hours the horse could see very little, if any, the eye being nearly closed. - The same day, or the day after, Penn took the horse to M’Gregor, and tendered him to him; he refused to receive him and Penn turned him loose on the commons. These are the material facts of the case; there is some other testimony, indeed, going to show that M’Gregor was guilty of a suppression of the truth, or a suggestion of a falsehood in the sale of the horse to Penn; but as there is hut one count in the declaration, and that on the warranty of the soundness of the eye of the horse, the testimony was not applicable to the case, and therefore, need not now be considered. The pleas do not deny the unsoundness of the horse, but only put in issue the making of the warranty.
    The court charged the jury, that the plaintiff having, declared on a warrrnty, he must prove the warranty, but that it was not necessary to prove it expressly as laid, but if there was testimony before them, from which they could infer a warranty, they might do so. The jury found a verdict for the plaintiff upon which judgment was given by the court.
    
      C. Ready, for plaintiff in error.
    The judge erred in charging the jury that they might infer a warranty. On a sale of chattels, there are but two grounds on which the purchaser can recover for a defect in them. One is upon an express warranty, as to quality; and the other is, upon proof of fraud; that is, a knowledge on the part of the vendor of a latent defect, which he deceitfully conceals from the vendee. Westmorland vs. Dixon ⅜ Shelton, 4 Hay. 123: Parkinson vs. Lea, 2 East, 314: Seixas vs. Woods, 2 Cain’s Rep. 48.
    The finding of the jury must have been upon a supposed warranty, and was clearly against the testimony, there being no proof of a warranty.
    The verdict could not have been founded upon any supposed fraudulent suppression, on the part of M’Gregor, of the true situation of the horse. The question of fraud was not submitted to them by the charge of the court, They were distinctly told by the court, that the plaintiff having ■ declared upon a warranty, must recover, if at all, upon the warranty. The jury gave no response to the testimony introduced to establish M’Gregor’s knowledge and fraudulent suppression of the unsoundness of both his eyes; and what their response would have been to a charge of fraud m suppressing the true situation of the horse, we cannot infer, that question not being left to them.
    Even upon the supposition, that their verdict was founded upon the testimony, by which it was attempted to establish a fraudulent concealment of facts, the judgment ought not to stand, because there is no evidence that M’Gregor knew both eyes were defective.
    The court erred in not granting a new trial, there being no testimony to support the verdict, either on a warranty or for fraud.
    But if a fraudulent concealment of facts had been proved on M’Gregor, it is submitted whether or not the judgment below could be sustained. There is but one count in the declaration, and that is on the warranty. There should have been a count for the deceit in the concealment of facts, to authorize the verdict on that ground, or a charge of a scien-ter in the count on the warranty. Seizas vs. Woods, 2 Cain’s Rep. 48: Perry vs. Aaron, 1 Johns. Rep. 129: 2 East, 449, in a note.
    
      J. S. Yerger ⅜ W. E. Anderson, for defendant iii error.
    A warranty may be inferred from the proof of what took place at and subsequent to the sale. 12 Eng. Com. Law Rep. 94.
    No express words are necessary to create a warranty; any words which show that the parties designed it as such are sufficient. The words in this case are strong enough. 19 John. Rep. 290: 7 Serg. and Rawle, 482.
   Turley, J.

delivered the opinion of the court.

It is contended by the plaintiff in errpr, that the court erred in saying to the jury, “that they might infer a warranty,” which it is said is, in effect, instructing them that ⅜ they might find an implied warranty. We do not put construction upon the charge of the court. It is true, that the word “infer” is used a little loosely, but when taken in connection with the rest, its meaning is obviously correct. The jury were instructed that the plaintiff must prove a warranty, hut that it was not necessary to prove it by express testimony, but, that if there was testimony before them from which they could infer it, they might do so, the manifest meaning of which is, that positive proof was not necessary, but that the warranty might be proven circumstantially. This charge, we think to be correct; it is not stronger language than that used by Chief Justice Best, in his charge to the jury, in a similar case reported in 12 Com. Law Rep. 95, in which he says, “The question is, whether I and the jury can collect that a warranty took place.”

2. It is argued, if the charge be correct, the verdict is wrong, as there is no proof that there was a warranty. It is certainly true, that when an action is founded on a-warranty of the soundness of a chattel, a warranty must be proved, but it is not necessary that the vendor should use the express words, I warrant the soundness; any words of equivalent import, showing the intention of the parties, that there should be a warranty, will suffice. In the case of Chapman vs. March, 19 John. Rep. 289, Chief Justice Spencer saysx “that if a man should say on the sale of a horse, ‘I promise you the horse is sound;’ it is difficult to conceive that this is not a warranty, and an express one too.” Peake, in his treatise upon Evidence, 228, says, “In general, any representations made by the defendant of the state of the thing sold, at the time of the sale, will amount to a warranty,” and in the case of Salmon vs. Wood, 12 Com. Law Rep. 95, before referred to, the court says, “that if the plaintiff in a letter to the defendant, says, £you remember you represented the horse to me as a five year old;’ to which the defendant answers, the ‘horse is as I represented,’ this amounts to a warranty. ” These authorities show, that it is the intention, and not the specific words used, which constitutes a warranty; and the existence of this intention is frequently a very delicate and difficult question of fact, which must of .necessity be left to the determination of the jury. All that the court can legitimately do, is to say to them, that if the proof Shows that the vendor intended to warrant, they must find the warranty. Apply these principles to this case; the proof is, that the vendor, at the time of the sale, said to the vendee, “I recommend this horse as having one good eye;” now whether this amounts to a warranty of soundness or not, is for the determination of the jury, under the instruction of the court, as to what it takes to constitute a warranty. We have seen that no set phrase of words is necessary, that any will do, provided it can be collected from them, that a warranty was intended. Now, whether a warranty was intended by the words used by the vendor on this occasion, depends upon the situation of the parties, and the manner and circumstances under which they were spoken. We do not take it upon ourselves to say, that the words did amount to a warranty, but we can conceive, that they might have been so intended. The question was left to the jury, the proper tribunal for its determination, and we will not disturb the verdict. Let the judgment be affirmed.

Judgment affirmed.  