Opinion of the Court.

the death of her husband, over and above her dower, and in preference to all other representatives. Neither could the husband devise, by his will, such ornaments and jewels of his wife. Blackstone says, "though, during his life, perhaps he hath the power, and if unkindly inclined to exert it, he might sell or give them away; but if she continues in use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons except creditors, where there is a deficiency of assets." Blk. Com. vol. 2. p. 436. Thus it is seen, by the common law, that her personal apparel and ornaments substantially belonged to, and the beneficial interest therein was vested in her, until deprived of it by a sale or gift by the husband, or subjected to payment of his debts on a failure of other assets. If, then, such was the common law, we must hold that, in this case, the wife was virtually the owner until divested by the husband exerting his power of selling or giving away this property, or it being subjected to the payment of his debts. She, then, was the owner within the meaning of the statute, and was thereby a competent witness.

It is next urged that the evidence fails to support the verdict. There can be no question, had appellant introduced no evidence there would have been a clear case in favor of appellee. And although the testimony of appellant may have had the effect of producing doubts, still the jury were warranted in finding for appellee, and the judgment of the court below must be affirmed.

Judgment affirmed.

61 266 40a 628

Syllabus. Opinion of the Court.

ROBERT REED

v.

HIRAM HASTINGS.

1. WARRANTY-what constitutes. While no particular form of words is necessary to constitute a warranty, yet there is a distinction as to the legal effect of expressions when used in reference to a matter of fact, and when used to express an opinion. When the representation is positive and relates to a matter of fact, if relied on by the purchaser and it induced the purchase, it constitutes a warranty; but when the representation relates to that which is a matter of opinion or fancy, as the value of a horse or other article of property, it does not amount to a warranty unless there are other declarations which leave no doubt of the intention to warrant.

2. The intention with which the representation is made is to be determined by the character of the representation made, and the object to be effected by it.

APPEAL from the Circuit Court of Lake county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. STORY & KING, for the appellant.

Mr. SIDNEY SMITH, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit on a promissory note, with the common counts. The note was given for a flock of sheep, and the defense was, that the plaintiff represented to the defendant that the ewes, of which there were more than three hundred in the flock, had not been with the bucks-not more than a dozen of them-and that not more than that number were with lamb. The case turns upon this point. The testimony was conflicting, and it was a fair question for the jury whether the representations made were a warranty or a mere expression of opinion. This court has said that no particular form of words is necessary to constitute a warranty, but there was a distinction as to the legal effect of expressions when used

Opinion of the Court.

in reference to a matter of fact, and when used to express an opinion. When the representation is positive and relates to a matter of fact, it constitutes a warranty, but where the representation relates to that which is a matter of opinion or fancy, as the value of a horse or other article of property, it does not amount to a warranty unless there are other declarations which leave no doubt of the intention to warrant. Towell v. Gatewood, 2 Scam. 22; Adams v. Johnson, 15 Ill. 345.

Appellant complains that this distinction was not regarded by the court trying the cause, in giving to the jury the instructions asked by plaintiff, and we are of that opinion. We think the third, fourth and fifth instructions for the plaintiff should not have been given in the terms used, especially the fifth. All of them, as given, were calculated to mislead the jury.

The jury were not told that, if the representations made by the seller were mere expressions of opinion as to the condition of the ewes, they would not amount to a warranty, but if they were representations or statements of a fact that the ewes had not been with the bucks, and which statements were relied on and induced the purchase, they would amount to a warranty.

It surely can not be the law that a vendor of a chattel is permitted to make any false statements of fact in relation to the article, which he may choose to indulge in, thereby inducing the purchase, and not be accountable to the purchaser. The fact that the ewes had not been with the bucks prior to the sale, was an important fact to the purchaser, and when deliberately asserted it amounts to a warranty, if made with a view of assuring the buyer of the truth of the fact asserted, and to induce him to make the purchase if the affirmation is so received and relied on by the purchaser. Hawkins v. Berry, 5 Gilm. 39; Ender v. Scott, 11 Ill. 35. There is nothing in the case of Wheeler v. Reed et al. 36 ib. 81, in conflict with what is here said. There the question was, as to the quality of the flour sold, and the jury were told that it was not necessary the word "warrant" should be used in order to make a warranty of the quality of the article sold, yet, to make any affirmation or

Syllabus.

representation of the quality amount to a warranty on the part of the seller, it must appear to have been made at the time of the sale with the intention of thereby warranting the quality of the article, and not the mere expression of the seller's opinion. In that case, there was an assertion of the quality of the flour; here, it is claimed, was a positive affirmation of an important fact that should have been in the knowledge of the seller. The intention with which the representation is made is to be determined by the character of the representation made, and the object to be effected by it.

For the reasons given, the judgment is reversed and the cause remanded.

Judgment reversed.

ELIAS B. BOWEN et al.

v.

THE CITY OF CHICAGO.

1. VOID ASSESSMENT.

An assessment based upon a former original

assessment which was void, is itself void.

2. All the points in this case, decided in Foss v. City of Chicago, 56 Ill. 354. Also, see Workman v. City of Chicago, and Union Building Association v. City of Chicago, post 463, 439. Those cases control this.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. BARKER & WAITE, and Mr. WILLIAM HOPKINS, for the appellant.

Mr. M. F. TULEY, for the appellee.

Opinion of the Court.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This is an appeal from the judgment of the Superior Court of Cook county rendered upon a warrant for a special assessment to make up the amount which the city failed to collect of an original assessment for curbing with curb stones, filling, grading, and paving with wooden blocks West Madison street, from Centre avenue to Robey street.

The points arising upon the record question the validity of this second assessment.

Under proper objections to the application for judgment, the counsel for appellants introduced in evidence a certified copy of the entire record in both the original and new proceedings, from which it appears that the original proceedings from the first initiative step of the board of public works down to the order of confirmation were illegal and void upon the same grounds as in the case of Foss v. City of Chicago, 56 Ill. 354.

In the second assessment proceedings, which are more directly involved in this case, the original are treated as if valid. That is to say, although the statement to the council of the estimate of cost and expense is contained only in a report inviting an authority which the council could not legally give to the board, and which was therefore void, still, that estimate so reported is taken as the basis for the deficiency to be levied by the second proceedings, and is the only estimate ever stated to the council by the board.

The statute of 1867, amendatory of the city charter, makes it indispensable to a valid ordinance that the council should first obtain an estimate of the cost and expense of the improvement. None has ever been obtained but a void one. The same statute makes it indispensable to a valid assessment that the common council shall, in the order directing the doing of the work or making the improvement, specify what amount of the estimated expense shall be assessed upon the