Here again we come on the law of representations, but in a new phase.Being a part of the contract, it is always possible that their truth should make a condition of the contract wholly irrespective of any question of fraud.And it often is so in fact.It is not, however, every representation embodied in the words used on one side which will make a condition in favor of the other party.Suppose A agrees to sell, and B agrees to buy, "A's seven-year-old sorrel horse Eclipse, now in the possession of B on trial," and in fact the horse is chestnut-colored, not sorrel.I do not suppose that B could refuse to pay for the horse on that ground.If the law were so foolish as to aim at merely formal consistency, it might indeed be said that there was as absolute a repugnancy between the different terms of this contract as in the ease of an agreement to sell certain barrels of mackerel, where the barrels turned out to contain salt.If this view were adopted, there would not be a contract subject to a condition, there would be no contract at all.But in truth there is a contract, and there is not even a condition.As has been said already, it is not every repugnancy that makes a contract void, and it is not every failure in the terms of the counter undertaking that makes it voidable.Here it plainly appears that the buyer knows exactly what he is going to get, and therefore that the mistake of color has no bearing on the bargain. If, on the other hand, a contract contained a representation which was fraudulent, and which misled the party to whom it was made, the contract would be voidable on the same principles as if the representation had been made beforehand.But words of description in a contract are very frequently held to amount to what is sometimes called a warranty, irrespective of fraud.
Whether they do so or not is a question to be determined by the court on grounds of common sense, looking to the meaning of the words, the importance in the transaction of the facts which the words convey, and so forth.But when words of description are determined to be a warranty, the meaning of the decision is not merely that the party using them binds himself to answer for their truth, but that their truth is a condition of the contract.
For instance, in a leading case the agreement was that the plaintiff's ship, then in the port of Amsterdam, should, with all possible despatch, proceed direct to Newport, England, and there load a cargo of coals for Hong Kong.At the date of the charter-party the vessel was not in Amsterdam, but she arrived there four days later.The plaintiff had notice that the defendant considered time important.It was held that the presence of the vessel in the port of Amsterdam at the date of the contract was a condition, the breach of which entitled the defendant to refuse to load, and to rescind the contract.If the view were adopted that a condition must be a future event, and that a promise purporting to be conditional on a past or present event is either absolute or no promise at all, it would follow that in this case the defendant had never made a promise. He had only promised if circumstances existed which did not exist.Ihave already stated my objections to this way of looking at such cases, and will only add that the courts, so far as I am aware, do not sanction it, and certainly did not in this instance.
