[1954] 1 All ER 855
Court of Appeal
On 23 October the seller of a motor cycle combination told the buyer that it was a late 1941 or 1942 model. The registration book showed it to be first registered on 9 September 1941. The seller in fact knew that the model was a 1936 or 1938 model. A week later on 30 October the seller and buyer entered into a written contract drawn up by the buyer which did not refer to the date of the motor cycle combination. The buyer later discovered the true age of the motor cycle combination and sued the seller for breach of warranty.
Sir Raymond Evershed MR
The question is whether or not, on a sale of a motor bicycle with a side-car combination, there was a warranty as to the date when the machine was originally put on the market. The classic exposition of the law in regard to warranties is to be found in the speech of Lord Moulton in Heilbut, Symons & Co. v Buckleton...
... On the oral evidence, therefore, the judge found, in effect, that, before the bargain was eventually made, the [seller] specifically stated [on 23 October], in answer to a question, that it was a 1942 model, and pointed to the corroboration of that statement to be found in the registration book, and that he knew, from what the manufacturers told him, the true date to be 1936 or 1938. Of course, it does not follow that the [seller] was deliberately trying to deceive the [buyer], and in any case we are not here trying any action based on fraud.
The [buyer] had caused to be prepared a written memorandum or contract which was signed by himself and the fifth party on Oct. 30, 1949... This written memorandum represents prima facie the record of what the parties intended to agree when the actual transaction took place. Counsel for the [seller] contended that the terms of it necessarily exclude any warranty, that is to say, any collateral bargain, either contemporary or earlier in date. I am not sure that I would go so far as that. But I think that as a matter of construction it would be difficult to say that such an agreement was consistent with a warranty being given at the same time so as to be intended to form a part of the bargain then made. I think, with counsel for the [seller], that the last words 'It is understood that when the £30 is paid... this transaction is closed' would make such a contention difficult. But I will assume that the warranty was given, not when the bargain was struck, but on Oct. 23, 1949, on which date alone, according to the evidence, any representation about the date of the motor cycle combination was made at all.
If that representation is to be a warranty it has to be contractual in form. In other words, so far as I can see, once the existence of a warranty as part of the actual bargain is excluded, it must be a separate contract, and the overwhelming difficulty which faces the [buyer] is that when the representation was made there was then no bargain, and it is, therefore, in my view, impossible to say that it could have been collateral, to some other contract. Even apart from that, it seems to me that on the evidence there is nothing to support the conclusion, as a matter of law and bearing in mind Lord Moulton's observations, that in answering the question posed about the date of the motor cycle combination there was anything more intended than a mere representation.