It is my opinion that the facts *Page 478 alleged in the petition now before the court distinguish this case from those cases wherein the buyer of a patented or well-known article of merchandise in a sealed container from a retailer brings suit against such retailer for damages resulting from a breach of an implied warranty as to the suitability and fitness of the article. The present case is based on an express warranty or direct representation of a fact by an agent of the sellers. The words of the defendant's saleslady, with which the defendant was chargeable, amounted to an express warranty and a direct representation that the face cream sold to the plaintiff was pure, beneficial, and not harmful. It appears from the allegations of the petition as amended, that the plaintiff was a prospective customer in the store of the defendant, that she was in the particular department thereof in which cosmetics were offered for sale, that this saleslady inquired of the plaintiff if she had ever used any of this particular brand of face cream; and upon receiving a negative response from the plaintiff this saleslady stated directly to the plaintiff that the store highly recommended this face cream to its customers, that it was good, and that they had already sold a large quantity of it. Such statements might be classed as merely dealer's talk or puffing, and not binding on the defendant as a warranty or as a representation of a fact. It is, however, further alleged in the petition that the plaintiff directly asked the saleslady if the face cream was harmless, and that in reply thereto the saleslady stated that the cream was "pure, beneficial, and harmless, and that it would not harm the most tender skin, and that if it were not such the store would not sell or recommend it." This amounted to an express warranty and a direct representation as to the quality and fitness of the article offered for sale. It could hardly be held as a matter of law to be merely dealer's talk or puffing, which is ordinarily no warranty, and is held by the courts to be merely naked praise or simple commendation of property offered for sale. See 55 C. J. 690.
An express warranty exists where there is a positive and unequivocal statement to the buyer concerning the thing sold, which the buyer relies on, and which is understood by the parties as an absolute assertion concerning the thing sold, as distinguished from the mere expression by the seller of an opinion. Representations which merely express the seller's opinion, belief, judgment, or estimate as to the article sold do not constitute a warranty. See Terhune *Page 479 v. Dever, 36 Ga. 648; Smith v. Frazer, 144 Ga. 85 (86 S.E. 235); 55 C. J. 689. However, a statement made in response to a direct query by the buyer as to the character or quality or fitness of the article offered for sale is ordinarily an express warranty or a direct representation of a fact. 55 C. J. 676, 682, and cit. An affirmation by an agent of the seller as to the fitness or soundness of the article sold, where relied on by the buyer as a statement of fact respecting the property, constitutes an express warranty. 55 C. J. 695, and cit. If it had been the intention of the saleslady to do no more than recommend the article, and not to expressly warrant it, she could easily have stated that in her opinion or belief the article was harmless, and that the store had sold much of it with no complaints, and that all of its customers were highly pleased therewith, etc. Instead, she affirmed, in response to a direct query from the customer, that the article was harmless. It is alleged that the plaintiff, relying upon these statements of the saleslady, purchased the cream, and as a result of the application thereof to her face she sustained the injuries sued for. See Fouche v. Brower,74 Ga. 251, 263. An untrue statement that a thing is a fact, whereby the other party has been induced to act, amounts to a legal fraud, irrespective of whether it was wilfully or innocently made. Cunningham v. Huson Icec. Co., 26 Ga. App. 302 (105 S.E. 860); Dinkler v.Baer, 92 Ga. 432 (17 S.E. 953). The fact that the seller innocently misrepresents a fact, on which the buyer acts to his injury, does not relieve the seller from liability. Smith v. Mitchell, 6 Ga. 458; Bailey v.Jones, 14 Ga. 384; Code, §§ 37-703, 96-203. See Hayes v.Bank, 143 Ga. 522, 534 (85 S.E. 699). I am of the opinion that the petition as amended set out a cause of action. I therefore dissent from the judgment affirming the sustaining of the demurrer.