his attention had been drawn to the true point. He says, parenthetically, that no particular form of words is necessary to create a contract, even the contract of warranty, and that it is for the jury to say what is the effect and meaning of verbal statements, conversations, or negotiations; and yet he denies that such conversations under such circumstances between such persons afford any evidence to justify the inference that the jeweller undertook or agreed, or contracted or promised, in consideration of the purchase of the stone and payment of the price, that the stone bought was really what he described it to be: that is, that the chattel was what he had said it was. Parker, C. J., simply refused to accept any such sanction to swindling as the law of his State.
The point decided in Chandelor v. Lopus no doubt has been confused with the remarks or reasons attributed by the reporter to the judges who gave judgment. Whether they ever uttered them is more or less uncertain. Rarely do two reports of the same case agree in the reasons, or, as we call them, the opinions of the judges. Sometimes one reporter finds a point decided which is omitted by another. Sometimes a fact stated by one explains a decision stated by another. Here, as has been said, the question arose in error and on a judgment on demurrer, and the only possible point was, Did the allegation show a cause of action? It certainly did not. On the other hand, it showed evidence which certainly was sufficient to prove a cause of action. The test of the inefficiency of that averment is, that had issue been joined the plaintiff would be entitled to a verdict if he proved the facts averred. And it would not have availed had it been proved that the averment was qualified by there having been an express request and refusal to warrant, by an admission that the purchaser was not deceived, but took his chance, or that he did not rely on the averment, but believed it was untrue when he heard it, or that the thing turned out to be a diamond worth £1,000, instead of being a bezoar stone worth £100.
Put the case in legal form in either of the two possible aspects it could assume to create a liability, and all these things become material. Was there deceit ? — i.e., successful fraud and damage resulting, — or was there a contract, in which case fraud or knowledge or deception become immaterial?
My object is to redeem the famous case from being relegated to the rubbish of the past, and show it up as a specimen of as per-
