Geo. Enger & Co. v. W. W. Dawley & Co.

62 Vt. 164

• Court: Supreme Court of Vermont
• Decided: January 15, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Taft, J.

The only exception argued is the one taken to the failure of the court to comply with the third request. It does not embody a sound legal proposition. A catalogue was in evidence which contained representations as to the painting and varnishing of the wagons. The defendant claimed the representations were warranties; and asked instructions that if the ■catalogue “.was used by the parties and referred to by them ” in completing the sale, and defendant relied upon them and believed them to he true, and made the purchase relying on them, then they were, in legal effect, warranties. This request is defective in that it ignores any intent on the part of the seller that the representations should be warranties, or knowledge that the vendee so regarded them, or that the representations formed the basis of the sale, or were intended to form a part of the contract. Without one of these elements the representations contained in the catalogue would not be warranties. 1 To constitute a representation a warranty it must have been so intended and ■understood by the parties, both vendor and vendee. Beeman v. Buck, 3 Vt. 53 ; Foster v. Caldwell's Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Houghton v. Carpenter, 40 Vt. 588; Pennock v. Stygles, 54 Vt. 226 ; or, intended by the parties as a part of the contract; Richardson v. Grandy, 49 Vt. 22; or, have formed the basis of the contract; Beals v. Olmstead, 24 Vt. 114; Drew v. Edison, 60 Vt. 401.

In the making of the contract the representations in the catalogue may have been used and referred to without forming a part of it, and without any intent on the part of Stevens, the plaintiff^ agent, that they should, and without any intent on his part that they should be warranties, and without knowledge that the defendant so understood them. In ignoring these facts the request did not embody sound law, and for this reason the defendant was not entitled to have it complied with. Rea v. Harrington, 58 Vt. 181. Judgment affirmed.