Herman v. Brinker

Citations

• 17 Pa. Super. 177
• 1901 Pa. Super. LEXIS 274

Syllabus

<p>Sale — Warranty—Province of court and jury — Warranty of cow.</p> <p>Although to constitute a warranty no particular form of words is required, the naked averment of a fact without more is not a warranty. In connection with other circumstances it certainly may be taken in consideration, but the jury must be satisfied from the whole that the vendor actually and not constructively consented to be bound for the truth of his representation.</p> <p>In an action to recover damages for an alleged breach of warranty in the sale of a cow, where the plaintiff testifies that at the time of the sale the defendant used the words “The cow is all right,” and it turned out that the cow had mange, the plaintiff has no standing to complain that the court erred in refusing to say that these words of themselves constituted the warranty, and in saying to the jury “there must be a declaration that the cow is all right, and it must have been made by the seller intending that he would stand good for the truth of that allegation, and in addition to that the purchaser must have thereupon purchased in reliance upon that allegation.”</p>