#### CHARLES HENSON vs. ROBERT KING.

Whether an affirmation of the qualities of a chattel sold, is a warranty of soundness, is a matter depending on intention 'and should be left to the jury.

Action on the case for false warranty and for a deceit.

The plaintiff having proved the unsoundness of the animal in question, (a mare,) proved by one Seahorn, that, being a neighbor to both parties, he consented to be present at an interview between them on the subject of the trade. The plaintiff took the mare with him to defendant’s house, and offered her back to the defendant, proposing to pay him twenty-five bushels of corn if he would rescind the bargain; on this being refused, he proposed to raise the quantity to fifty bushels, which, after some further conversation, was also refused. When the offer was first made by plaintiff, he said to him, that he had brought the mare back which he had purchased of him; that she was not what the defendant represented her to be; she was not sound; that the defendant had sold her as a sound mare, and that lie had paid $100 for her; to which statement the defendant said nothing. There was much other testimony, but the above only is material to the view taken of the case by this Court. The Court below charged the j ury that *420there was no evidence of a warranty of soundness; to which instruction the plaintiff excepted.

Yerdict for the defendant. Judgment and appeal.

Wilson, for plaintiff.

Boyden, for defendant.

Nash, C. J.

It is well settled, that a bare affirmation of the quality of an article sold, merely expressive of the judgment or opinion of the vendor, will not amount to a warranty ; to make it so, it must appear that it was a part of the contract that there should be a warranty. Foggart v. Blackweller, 4 Ire. 238, and the authorities there cited; Baum v. Stevens, 2 Ire. 411. It is not denied but that the animal was unsound ; it is, however, denied that there was any warranty. Ilis Honor instructed the jury, that there was no evidence of a warranty. In this there is error.

The witness states, that, at the request of the plaintiff, he went with him to the house of the defendant, and the plaintiff proposed to the defendant to take the mare back. The plaintiff observed to the defendant that the mare was not what he had represented her to him; she was not sound ; that defendant had sold her to him as a sound mare. The defendant said nothing. The sole enquiry is, is this any evidence of a warranty ? His Honor must have been of opinion that there was no contract of warranty between the parties. Whether the circumstances amounted to a warranty or not, was a question of fact for the jury ; because, its being, or not so being, was in the intention of the parties. Batumis case. In that case, the defendant had sold a number of negroes, and when one named Jim was put up, he said: “ Here is a young, likely, healthy negro; what is bid for him ?” The presiding Judge notified the plaintiff’s attorney, that he should instruct the jury that the 'words did not amount to a warranty. This Court ordered a venire de novo, upon the ground that the question ought to have been loft to the jury as a matter of intention between the parties. In Blaelaweller's case, wheth*421er the negro was sold as sound, was a matter of controversy among the witnesses. His Honor, the presiding Judge, stated to the jury, that where a vendor used the word warrant or promise, or any other word or phrase, signifying that he undertook that the article sold was sound, it was in law a warranty; but when he used only words of affirmation, there, whether it was a warranty or not, was a question of fact for the jury; they were to say whether the parties intended a warranty. The Court here adopted their instructions. In this case, the word warranty was not used; but, the defendant, by his silence, admitted he had sold the horse as a sound one. His Honor erred in telling the jury there was no evidence of a wai'ranty. We think there was evidence of a warranty, which ought to have been left to the jury.

Per Curiam.

Judgment reversed, and venire de novo.