(dissenting)—It is my judgment that the court has misapplied the principles relied on in this case. If a man sells a thing to another and represents that it will do the work at a less cost than some other machine or appliance, it may be the representation is but an expression of opinion or seller’s praise and not a warranty, but the exceptions to the established rules of law are quite as important as the rules themselves, and when the facts warrant their application, are as controlling as the primary rules.
It seems to me that the facts take this case out of the general rule. The defendant owned and was using a “T” stacker. So far as the testimony shows, it was meeting every requirement of his business. The agent of plaintiff went to him and, by the representations which are set out in the opinion of the court induced him to give up the old stacker and buy a Jenkins automatic stacker and three Buck rakes. The giving up of the old is a part of the transaction as material to the issue in this case as was the purchase of the new machine. When a machine is in use and the owner is induced to purchase another upon the representation that it will do better work and at less cost than the one then owned by the vendee, I think it is a warranty and that the seller is bound by his representation: I have not the time to go into the subject at any great length, but the idea I have advanced is well sustained by authority.
*457The case of Hazelton Boiler Co. v. Fargo Gas & Elec. Co., 4 N. D. 365, 61 N. W. 151, is directly in point. Then, again, the rule of the earlier cases, that the question of whether there is a warranty in a given case will be measured by the words of the parties and determined as a matter of law, has given way to the better rule, which is sustained by all modern authority, that whether a positive affirmation of a material fact made as an inducement to a trade, when accepted and acted upon by the vendee, is a warranty is a question for the jury, whether the vendor mentally intended to warrant or not. Shippen v. Bowen, 122 U. S. 575; Huntington v. Lombard, 22 Wash. 202, 60 Pac. 414; Northwestern Lumber Co. v. Callendar, 36 Wash. 492, 79 Pac. 30.
In the latter case we said:
“Where one who is not familiar with machinery is dealing with one who is, the representations of the seller amount to a warranty of the machinery, whether so intended by him or not, if the purchaser relied on such statements as a warranty and was induced' thereby to make the purchase.”
In the case at bar, it would seem idle to contend that the purchaser did not rely upon the statements as a warranty. It is not a case where the seller sought out a prospective purchaser and represented that his machine would do better work and at less cost than a “T” stacker. The prospective purchaser had, and was using, a “T” stacker. He gave it up solely on account of the representations of the seller that the article offered would Work a saving over the one in use. The representation was made as an inducement to the trade, and with an intent that it should be acted upon. The case was one for the jury, and the judgment should be affirmed.
For these reasons, I dissent from the opinion of the majority.