Sec 218

A condition precedent in its technical sense, as we shall have occasion to see more fully,6 precludes such a concurrence of minds as constitutes an immediately effective contract. It is, "if a certain state of facts exists, then we agree that a certain thing shall be done."7 The things is not to be done unless the condition is satisfied. A warranty, on the other hand, implies a concurrence of minds as to an immediate effect. It is this: "Such a thing is to be done, but if a statement made be not correct, the party imposed upon is to recover damages from the other party for the injury he has sustained." In a larger sense, however, a warranty has been defined to be "a condition the breach of which might have discharged the contract had it not been so far acquiesced in as to lose its effect for that purpose, though it may give rise to an action for damages."1 - Bannerman v. White2 is cited3 as a leading case on the distinction between conditions and representations. The suit in that case was brought on a contract for the purchase of a crop of hops; and it appeared that when the negotiation began, the defendant asked the plaintiff whether sulphur had been used in raising the crop, and that the plaintiff answered, it had not. It appeared that sulphur, employed as a fertilizer, facilitates the raising of hops, but reduces their market value. The defendant agreed to purchase the crop on the supposition that sulphur had not been used; but it turned out that sulphur had been used, for the purpose of trying a new machine, in five acres, the whole crop covering 300 acres, but that the produce of the entire crop had been mixed together. The defendant's statement appeared to have been inadvertently made, he having forgotten the use of the sulphur, or having regarded it as so trivial as to be unimportant. The jury found the representation not to have been wilfully false, hut that it "was intended by the parties to be part of the contract and a warranty by the plaintiff." The court held that the non-use of sulphur was a condition, the non-existence of which vitiated the sale. - " We avoid," said Erie, C. J., "the term warrant}/ because it is used in two senses, and the term condition because the question is, whether that term is applicable; then, the effect is that the defendants required, and that the plaintiff gave his undertaking that no sulphur had been used. This undertaking was a preliminary stipulation; and, if it had not been given, the defendants would not have gone on with the treaty which resulted in the sale. In this sense it was the condition upon which the defendants contracted; and it would be contrary to the intention expressed by this stipulation that the contract should remain valid if sulphur had been used. - The intention of the parties governs in the making and in the construction of all contracts. If the parties so intend, the sale may be absolute, with a warranty superadded; or the sale may be conditional, to be null if the warranty is broken. And, upon this statement of facts, we think that the intention appears that the contract should be null if sulphur had been used; and upon this ground we agree that the rule should be discharged."1

A condition negatives concurrence of minds; warranty assumes concurrence, but gives damages for misstatement.

1 See infra, sec 249, 250.

2 Wilde v. Gibson, 1 H. L. C. 605, reversing s. c. nom. Gibson v D'Este, 2 Y. & G. 542.

3 Sug. Law of Prop. 614, 634.

4 Pollock, 3d ed. 518.

5 That withholding of facts which business sagacity might discover is not misrepresentation, see infra, sec 249.

6 Infra, sec 545 et seq.

7 Supra, sec 5.

1 Anson, 135; see May on Ins. sec 184.

2 10 C. B. N. S. 844.

3 Benj. 3d Am. ed. 604; Anson, 136.