
    Jackson against Wetherill.
    
      Wednesday, January 7.
    In ERROR.
    An asserStth vendee at the amare/that"5 ÍTsáfe^and'6 kind, and gentle in harness, amounts merely to a representation, and does not constitute a warranty, or express promise that she is so.
    ERROR to the Court of Common Pleas of P hila delJhia county-
    This action was brought by Samuel P. Wetherill, plaintiff below, against William Jackson. The opinion of the Court 'below, delivered in their charge to the jury, was filed of record, at the request of the defendants’ counsel. It was now brought up by the writ of error, and was as follows :
    The defendant sold the plaintiff' a mare for 150 dollars ; but, after trial, alleging that she was not such' a mare as he ■ had contracted for, offered'to return her, and-demanded his money back. The defendant refused to receive her, or pay back the money. Whereupon the plaintiff sold her at the horse market for seventy-two dollars, thirty-eight cents, and now sues for the difference. It is testified, that before the plaintiff agreed to purchase the mare, the defendant told him, repeatedly, lie was sure she was perfectly safe, kind, and gentle in harness, and that the plaintiff, being satisfied as to her safety, purchased her. The Court are of opinion,-that no particular form of words is required by law to constitute a warranty, and that the communication, thus proved, did amount to a warranty by the defendant, that the mare was perfectly sáfe, kind, and gentle in harness.
    
      Kittera, for the plaintiff in error, cited' 1. Bac.- Ah. 80. 2 Selw. N. P. 580. 585. 6 Johns. 138. 1 Johns. 463.,.
    
      Swift, contra, referred to 2 Selw. N. P. 586. note. .
    
   The opinion of the Court was delivered by

Duncan J.

In this action, which on the state of the record and charge of the Court, must be considered as an assumpsit on the warranty of a mare, sold by Jackson to Wetherill, and not an action of deceit for a false representation of her qualities, the only question was,, whether evidence that before. Wetherill nad agreed to purchase the mare, Jackson had told him repeatedly he wás sure that she was perfectly safe, kind, and'gentle in harness, and that Wetherill, from this statement, being satisfied as to her safety, purchased her, amounted to a warranty. The Court of Common Pleas were of ■ opinion,'that this communication amounted to a warranty that the mare was perfectly safe, kind,, and gentle in harness.

It seems a principle well settled by the common law, that with regard to the goodness of wares purchased, the vendor is not bound to answer, unb ss he expressly warrant them to ge SOund and good, or there has been a fraudulent representation, an affirmation of a quality known to the vendor to be false. To constitute an express warranty, for there is , -. „ - , . none implied from the mere sale, no set iorm or words is required. The use of the word warrant, though it be the one generally used, is not so technical, that it may not be supplied by other words. But the words used must be tantamount ; they must not be dubious, or equivocal; but it must appear from the whole evidence, that the affirmant intended to warrant, and did not express a mere matter of judgment or opinion. From the time of Chandler v. Lopus, Cro. Jac. 4, to the present day, the doctrine has been, that a bare affirmation of quality will not give a cause of action, unless the vendor knew it was not of the quality he represented it to be, or had warranted it to be so. Jackson might have very truly said, that he was sure she was perfectly gentle in harness, without any deceit. It was an expression, and a pretty strong one, I admit, of his judgment and opinion, and if the contrary were known to him, would give a cause of action very different from warranty, in which it would be incumbent on the defendant in error to prove his knowledge of its falsity, the scienter being theyiíí of the action : whereas in the warranty, the undertaking is. In Seixas & Seixas v. Woods, 2 Caines, 48, it was held, that a description in a bill of parcels of the article as brazilletto wood did not amount to a warranty. An express promise, that a thing shall be of a certain quality, would be equivalent' to warranty, and in that case it may be stated in the declaration as a warranty'; for no declaration could be supported, that did not allege an ex-prés swarranty or fraud. In Holden v Dakin, 4 Johns. 421, where A. sold paint to B. for good Spanish brown and white lead. The paint proved to be bad, and of no value. It was held, there was no warranty in this case, and to make it actionable there must.be either an express warranty or fraud. Peake, in his treatise on evidence, 2d voi. 223, lays down the proposition too broadly; that in general, any representation made by the defendant at the time of the sale of the state ol the thing sold, will amount to a warranty at law. It is believed, there is no decision, which would justify the position, that a bare affirmation without knowledge- of the defects, or that the quality was different frqm. what he affirmed it to.be, would support an action, ! Fonb. 120. Caveat emptor, will apply wi,th more force to the sale of a horse than any other article.; a horse being.more the subject of speculative dealing than almost any chattel, and being more liable to secret maladies, than any other animal, (which maladies are frequently not discernablc oh inspection or mere trial,) it is usual to require from the seller a warranty of soundness as to lateht defects. Dealers in horses do not lay themselves under much restriction in praise of their animals ; but you touch.a tender, point when you propose warranty. The words used, I am sure she is safe, kind, and gentle in harness, do not amount to an express, promise or engagement, that she was so ;- much les? to a direct warranty. It is the caste of a representation/and if made with the knowledge of its falsehood,'would render' the party liable in, an action of deceit, but not in assumpsit on the warranty, ' The judgment is reversed, and a venire facias de novo awarded. . ■ ' '

Judgment reversed, and a venire facias^ de novo awarded.  