Williams v. Cannon , 9 Ala. 348 ( 1846 )

COLLIER, C. J.

In Ricks v. Dillahunty, 8 Porter’s R. 134, we said, that no particular form of expression was necessary to constitute a warranty. “ It will, in general, depend upon the meaning of the terms, and the sense in which they were used, or understood, by the parties, whether they amount to a warranty, or are to be understood as a representation of the seller’s opinion. Accordingly, where the vend- or said of a colt he was about selling, “ there is nothing the matter with the colt — it is well and sound, and will make a fine horseit was submitted to the jury to say, whether there was a warranty, or only a mere expression of the vend- or’s opinion, and they were directed to say how the words were understood by the parties. Such will be found to be the effect of the decisions, both in England and the United States. See Ricks v. Dillahunty, supra.

The first charge given in the case before us, did not refer it to the jury, to determine whether the representation made by the plaintiff as to the horse’s lameness, was understood as a representation of the plaintiff’s opinion, or a warranty that it proceeded from a founder; but assumed it as a legal conclusion that it was a warranty, and thus foreclosed the inquiry of the jury, as to the understanding and intention of the parties. In this view of the law, the court erred, as is conclusively indicated by the case cited from 8 Porter, and the still later decision of Barnett v. Stanton & Pollard, 2 Ala. R. 182.

If the plaintiff made the representation in respect to the horse, with a knowledge of its falsity, he would be guilty of a fraud, which would have authorized the defendant to have rescinded his purchase ; or if he retained the horse, to claim deduction from the purchase money to the extent to which he was prejudiced. See Barnett v. Stanton & Pollard, sufra.

We are not permitted to speculate about the reasons which influenced the jury in finding their verdict, and attribute it to their conclusion upon the question of fraud, in order that it may be sustained. It may be, and probably was quite as much the result of the first as the second charge. Be this as it may, it cannot be assumed that the plaintiff is not prejudiced by the error in the ruling of the court. The judgment is consequently reversed, and the cause remanded.