The opinion of the court was delivered by
ROWELL, J.As to the exclusion of the question put to Somers on cross-examination about his coming on a pass, it is enough to say that no offer was made to connect the plaintiff with furnishing him a pass if he came on one. Without this, the plaintiff could not be affected by the fact that the witness came on a pass.
The reasons urged to show error in not allowing defendant’s witnesses, Clark, Darby, and Fairfield, to testify their offers for the horses, come pretty much to the same point-relevancy to show soundness. All these witnesses had carefully examined the horses as to soundness, and Clark testified that they were sound, and defendant’s counsel say that the others did, and we think that is fairly inferable from the exceptions. The defendant, therefore, had the full benefit of their testimony on that subject; and the attempt to prove their offers was but seeking to have them give supposed emphasis to their testimony by stating, in effect, that they felt certain enough that the horses were sound to make the offers for them without requiring a warranty. It was, at best, an *367indirect way of trying to get at what had already been gotten at directly. And certainly the offers standing alone would not have tended to show soundness; for the witnesses might have considered the horses unsound and yet have thought them worth what they offered for them, and so have been willing to buy them without a warranty.
It is claimed that in charging on the aspect of warranty, the court assumed that the horses were unsound at the time of sale, and did not give the jury to understand that it must find unsoundness then in order to warrant recovery on that ground. It is true that the court said nothing in that part of its charge about finding unsoundness; but in charging on the aspect of deceit, the court expressly told the jury that the burden of proving deceit was on the plaintiff, and that before they could find for him on that ground they must be convinced by a fair balance of evidence that the horse was unsound at the time; and in this connection the court charged' that the same rule of evidence applied to the other branch of the case. ¥e think it- clear that the jury was not left to suppose that there could be a recovery on the warranty without finding a breach.
It is conceded that the court correctly charged the law of warranty, but claimed that it did not apply it to either branch of the case, for that it did not tell the jury that in order to make the defendant’s representations binding .upon him, he must have made them with the view of having the plaintiff receive them as true, and that the plaintiff must have made the purchase relying upon them. As to the aspect of warranty, certainly, this claim has no foundation, for in connection with the proposition of law conceded to contain all the elements of a warranty, the court expressly told the jury that they must make that rule their guide in applying the evidence, and determine whether what they found was said and done amounted to what the law calls a warranty. And again, in re-stating the questions at the close of the charge, the jury were told, among other things, that they were called upon *368to determine whether there was a warranty under the law laid down to them, defining what a warranty is in law. All this was quite sufficient.
As to the aspect of deceit, the jury were told that they must determine from the evidence whether the horse had a ring-bone and whether defendant knew it; whether defendant practiced a deceit upon the plaintiff in palming the horses off onto him with that defect on one of them; whether there was any such deceit practiced in the sale of the horses as the evidence tended to show, and as must be shown in order to make the defendant liable on that ground. "We think this was sufficient to give the jury to understand that they must find, both that the defendant intended to mislead plaintiff by his representations and that plaintiff was in fact misled by them, before they could make the defendant liable on this branch of the case. The language of the court imports an intentional deceit and palming off. To palm off means, to impose by fraud; to put off by unfair means. The language also imports that plaintiff must have been deceived and cheated by the misrepresentations, which he could not have been had he not relied upon them.
It was not error to submit to the jury to find whether there was a verbal warranty on the 2d of June, the last time plain tiff saw the horses before the purchase. Although he did not bxxy them that day, the price was then agreed upoxi at which he could have them. The testixnony oxi the part of the plaintiff, admitted withoxxt objection, presented two aspects as to warranty, namely, that of a verbal warranty on June 2d, and that of a written warranty on June 5th. The defendant denied both, and said that the bill of sale did ixot contain a xvarranty, and that if it did, he was not bound by it becaxxse of the circumstances in which he signed the bill. No objection was made to the admission of the parol evidence as varying the written contract. In this posture of the case it was the duty of the coxxrt to submit both aspects of that question; for it is not necessary that representations, in order *369to constitute a warranty, should- be simultaneous with the conclusion of the bargain, but only that-they should be made during the course of the negotiations that lead to the bargain, and should then enter into the bargain as a part of it. Wilmot v. Hurd, 11 Wend. 584; 2 Benj. Sales, § 929. (Corbin’s Ed.)
An important question is, whether the words, “ sound and kind,” contained in the bill of sale, constitute an express warranty as matter of law.
The law of warranty has undergone much change since Chandelor v. Lopus, Cro. Jac. 4, decided in the Exchequer Chamber in 1803. It was there held that an affirmation that the thing sold was a bezoar-stone was no warranty; for it is said, every one in selling his wares will affirm that they are good, or that the horse he sells is sound, yet, if he does not warrant them to be so, it is no cause of action.
But latterly courts have manifested a strong disposition to-construe liberally in favor of the purchaser what the seller affirms; about the kind and quality of his goods, and have been disposed to treat such affirmations as warranties when the language will bear that construction, and it is fairly inferable that the purchaser so understood it. Stone v. Denny, 4 Met. 155; Hawkins v. Pemberton, 51 N. Y. 198. And now any affirmation as to the kind or quality of the thing sold, not uttered as matter of commendation, opinion, nor belief, made by the seller pending the treaty of sale, for the purpose of assuring the purchaser of the truth of the affirmation and of inducing him to make the purchase, if so received and relied upon by the purchaser, is deemed to be an express warranty. And in case of oral contracts, it is the province of the jury to decide, in view of all the circumstances attending the transaction, whether such a warranty exists or not. Foster v. Caldwell's Estate, 18 Vt. 176 ; Bond v. Clark, 35 Vt. 577; Shippen v. Bowen, 122 U. S. 575.
Blit when the contract is in writing, it is for the court ta *370construe it, and to decide whether it contains a warranty or not. Wason v. Rowe, 16 Vt. 525. And by the great weight of recent authority, positive statements in instruments evidencing contracts of sale, descriptive of the kind, or assertive of the quality and condition, of the thing sold, are -treated as a part of the contract and regarded as warranties, if the language is reasonably susceptible of that construction and it is fairly inferable that the purchaser understood and relied upon it as such.
Thus, in Hastings v. Lovering, 2 Pick. 214, the sale-note described the article as “prime quality winter sperm oil.” The plaintiff declared in assumpsit on a warranty, and had judgment. In Henshaw v. Robins, 9 Met. 83, the bill of particulars affirpied the article to be indigo. The court said that that imported an express warranty if it was so intended, and that it must be taken to have been so intended, as there was no evidence to the contrary. In Brown v. Bigelow, 10 Allen 242, a case exactly in point, these very words, sound and kind, were held to constitute a general warranty of soundness. In Gould v. Stein, 149 Mass. 570, (s. c. 14 Am. St. Rep. 455,) a bought and sold note described the article as,“Oeara scrap-rubber as per sample, of second quality.” The court said that it did .not admit of doubt that the note was intended to express the terms of the sale, and that the contract of the parties was to be found in what was thus written, read in the light of the attendant circumstances. Held, a warranty that the rubber was of second quality, and that the fact that the plaintiff made such examination of it as he pleased, did not necessarily do away with the warranty.
Osgood v. Lewis, 2 Harris & Gill (Md.) 495, (s. c. 18 Am. Dec. 317,) is a leading case on this subject. There the bill of particulars contained a statement that the article was “winter-pressed sperm oil,” and the question was, whether those words were goer se a warranty; and it was held that they were, for, it was said, they could not be regarded as mere matter of opinion or belief, but as the assertion of a material fact that the defendant assumed to know and to warrant the existence of.
*371In Kearly v. Duncan, 1 Head (Tenn.) 397, (s. c. 73 Am. Dec. 179,) the words, “ said negroes sound in body and mind,” contained in a receipt for the price paid for them, were held clearly to constitute a warranty of soundness.
The words, “ being of sound mind and limb and free, from all disease,” in a bill of sale of slaves, were held a warranty in Cramer v. Bradshaw, 10 Johns. 484.
This case is criticised by Bennett, J., in Foster v. Caldwell's Estate, 18 Vt. 181, who would treat the words as a mere representation, descriptive of the property sold. But that case seems to have stood the test in New York, while Seixas v. Woods, 2 Caines 48, and Swett v. Colgate, 20 Johns. 203, to which he refers, and which held that no warranty arises from a description of the kind of property sold, have been expressly overruled by Hawkins v. Pemberton, 51 N. Y. 198, as not properly applying the doctrine that they correctly announce, wherein a contrary application is made, and wherein it is held that there is no distinction in principle between a-representation as to quality and condition and a representation as to kind and character. And in 1 Smith Lead. Cas. 341 (7th. Am. Ed.) it is said that such a distinction is too refined to be practicable.
In Yates v. Pym, 6 Taunt. 446, a description of bacon in a sale-note as “ prime singed,” was held to be a- warranty that it was prime singed.
So in Bridge v. Wain, 1 Stark. 504, the goods sold were described in the invoice as “ scarlet-cuttings.” Held, a warranty that they answered the known mercantile description .of scarlet-cuttings.
The advertisement of the sale of a ship described her as a “ copper-fastened vessel,” whereas she was only partially copper-fastened, and not what was called in the trade a copper-fastened vessel. Held, a warranty that she was copper-fastened. Shepherd v. Kain, 5 B. & Ald. 240.
A sold-note described turnip seed as “Skirvings’ Swedes.” *372Coleridge, J., said that there was no doubt that the statement was made by the defendant a part of the contract, and it was held to be a warranty that the seed was SMrvings’. Allan v. Lake, 18 Q. B. 560.
In Wetherill v. Neilson, 20 Pa. St. 448, (s. c. 59 Am. Dec. 741,) the bill of sale described the soda-ash as being of a certain strength, whereas it was of a less strength and unmerchantable. Held, no warranty. It is said in 1 Smith Lead. Cas. 343 (7th. Am. Ed.) that this case stands almost if not quite alone, and cannot be reconciled ¡with the general course of decisions in this country and in England.
In Barrett v. Hall, 1 Aik. 269, the note was payable in “ good cooking stoves.” The court said that no definite quality could be intended from the term good, and that it imported nothing but opinion, and was no warranty, and referred to Chandelor v. Lopus, Cro. Jac. 4, for authority, which is no longer authority.But we do not say that the court was wrong in that case, for good is a very common term of praise in trade, and as used in the note, ascribed no particular quality to the stoves, and might well be regarded in that case as mere matter of opinion or commendation and as so understood by the parties.
In Wason v. Rowe, 16 Vt. 525, the bill of sale said the horse was “ considered sound.” Held, no warranty; and with good reason, for “ considered ” was no assertion of a fact, but a mere expression of opinion.
The more recent cases in this state recognize the general rule that positive statements of fact by the seller in respect of the kind or the quality of the thing sold that constitute a part of the contract or form its basis and that are fairly susceptible of such a construction, are to be regarded as warranties.
Thus, in Beals v. Olmstead, 24 Vt. 114, one of the reasons given why the defendant’s statements ought to be regarded as warranties is, that they were made positively, and concerning matters as to which he was supposed and professed to have *373knowledge; therefore, it is said, he ought to expect to be bound by them. See also, Drew v. Ellison, 60 Vt. 401; Enger v. Dawley, 62 Vt. 164.
It is sufficiently certain as matter of construction that the words “sound'and kind,” found in the bill of sale before us, were intended by the parties to be a part of the contract of sale; and as such, it would be unreasonable to construe them as an expression qf mere opinion, when they positively ascribe to the horses a condition and a quality that the defendant assumed to know; they possessed and that he had peculiar means of knowing whether they possessed or not, while the plaintiff had no such means. Ve think the words, reading the instrument in the light of the attendant circumstances, clearly constitute an express warranty of soundness, and that the Chief Judge was right in so holding.
Judgment affirmed.