Hawkins v. Berry , 10 Ill. 36 ( 1848 )

The Opinion of the Court was delivered by

Treat, C. J.

The only question necessary to be decided in this case is, whether the evidence authorized the verdict of the jury. To sustain this finding, it must appear that Hawkins warranted the horse to be sound. To constitute a warranty, the term warrant need not be used, nor is any precise form of expression required ; but there must be an affirmation as to the quality or condition of the thing sold, (not asserted as a matter of opinion or belief,) made by the seller at the time of the sale, for the purpose of assuring the buyer of the- truth of the fact affirmed, and inducing him to make the purchase, which is so received and relied on by the purchaser. 2 Kent’s Com. 485; Chitty on Con. 135 ; Osgood v. Lewis, 2 Harris & Gill, 495. The facts detailed by the witness who was present when the contract was made, clearly show that Berry knew much more about the horse than Hawkins ; and that in making the purchase, the former-relied solely on this superior knowledge, and not on any representations made by the latter. When told by Hawkins that the horse had always been considered as sound, and was of a certain age, he replied that it was unnecessary to tell him any thing, for he knew all about the horse. The only testimony in the least conflicting with this view of the case is the naked declaration of -Hawkins that he sold the horse for a sound one. This admission was made some time after the sale, and under' circumstances not calculated to impress us with the conviction .that there was any warranty as to the soundness of the horse. The witness can state nothing else in connection with the transaction. It is most reasonable to conclude that this declaration in fact corresponded with those made at the sale, and that the witness did not understand or recollect its real import. Declarations of this character, although evidence against the party making them, are entitled to but little consideration when in consistent with the well established facts of the case. But taking the admission in its broadest sense and without reference to the other testimony, it does not make out a case of warranty. It must appear in addition that the purchaser relied on a warranty; and that the rest of the evidence fails not only to establish this, but on the contrary, shows that not the least reliance was placed on the assertions of the seller respecting the condition of the horse. In our opinion, a new trial should have been granted.

The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.