1. Truthfulness of description. .

Sec 559

We have already seen that a representation is to be distinguished from a warranty in this, that while a warranty forms a basis for a suit no matter to what point it goes, a misrepresentation, to form a basis for a suit, must be material, and must have been productive of injury to the purchaser.7 We have also seen that a condition is distinguishable from a representation in this, that where there is a condition there is no absolute concurrence to an immediately operative agreement; while a false representation, provided it goes not to identity but to quality, assumes a concurrence at least as to the thing which may be at once done or delivered, and a warranty expressly assumes a concurrence as to a thing which may be immediately delivered, and binds the vendor to give damages in case it fails in certain requisites.1 A condition precedent, also, is an integral part of the contract which it qualifies; the contract cannot be severed from the condition. Representations and warranties, on the other hand, are severable from the contract to which they are attached, and may form the basis of cross-suits. The non-performance of the condition prevents the contract from taking effect; the falsity of a representation or warranty does not prevent (if the parties had the same thing in mind) the contract from taking effect, but exposes the vendor to a suit for damages by the purchaser.2 To relieve a party, however, from a contract on the ground that the other party refuses to perform a condition precedent, the refusal must be specific and absolute, and must be so regarded on both sides.3 If, for instance, I continue to urge the performance of the condition on the party whose duty it is to perform it, this treats the contract as still in force.4

Representations and warranties to be distinguished from conditions.

1 Infra, sec 606; 2 Ch. on Cont. 11th Am. ed. 1086; Franklin v. Miller, 4 A. & E. 599; Lucas v. Godwin, 4 Scott, 502; Allard v. Belfast, 40 Me. 369; Putnam v. Mellen, 34 N. H. 71; Knight v. Worsted Co., 2 Cush. 271; Beecher v. Conradt, 3 Kern. 108.

2 Dey v. Dox, 9 Wend. 133.

3 See supra, sec 545 et seq.; infra, sec 601 et seq., 869 et seq.; Johnassohn v. R. R., 10 Exch. 434; Mawman v. Gil-lett, 2 Taunt. 327; Chapin v. Norton, 6 McLean, 500; Dodge v. Greeley, 31.

Me. 343; Clement v. Clement, 8 N. H. 210; Snow v. Prescott, 12 N. H. 535; Ott v. Lyons, 2 Whart. 441; Lykens v. Tower, 27 Penn. St. 462; Schilling v. Durst, 42 Penn. St. 126.

4 Supra, sec 190; infra, sec 601 et seq., sec 898; Fletcher v. Cole, 23 Vt. 114; Goodrich v. Lafflin, 1 Pick. 57; Dubois v. Canal Co., 4 Wend. 285.

5 Infra, sec 602, 904 et seq.

6 Brown v. Slee, 103 U. S. 828.

7 Supra, sec 212, 216; infra, sec 560.

1 Supra, sec 218.

2 Benj. on Sales, 3d Am. ed. sec 561; Wilson Sewing Mach. Co. v. Sloan, 50 Iowa, 367. As to "puffs," as distinguished from representations, see supra, sec 261. As illustrating the distinction above given, Mr. Benjamin (Sales, 3d Am. ed. sec 561) notices cases on charter parties, "where a statement that a vessel is to sail, or to be ready to receive cargo on a given day, has been decided to be a condition (Glaholm v. Hays, 2 M. & G. 257; Oliver v. Fielden, 4 Ex. 135; Seeger v. Duthrie, 8 C. B. N. S. 45), but a stipulation that she shall sail with all convenient speed, or within a reasonable time, is held to be an independent agreement." Tarrabochia v. Hickie, 1 H. & N. 183; Dimach v. Corlett, 12 Moore P. C. 199; McAn-drew v. Chappie, L. R. 1 C. P. 643. That where one party refuses to perform the condition precedent the other may abandon the contract, and sue for the losses he has sustained, see 2 Ch. Cont. 11th Am. ed. 1090; Dodge v. Greeley, 31 Me. 343; Webb v. Stone, 24 N. H. 282; Hill v. Hovey, 26 Vt. 109.

3 See infra, sec 602, 901.

4 Benj. on Sales, 3d Am. ed. sec 568; Notes to Cutter v. Powell, 2 Sm. L. C. 1, citing Barrick v. Buba, 2 C. B. N. S. 563; Avery v. Boden, 5 E. & B. 714; Danube R. R. v. Xenos, 11 C. B. N. S. 152; 13 C. B. N. S. 825; Smoot's case, 15 Wall. 36; see infra, sec 604, 891.