This is an action of case for an alleged breach of warranty in the sale of the bark “ Oak Hill.” The consideration paid for the bark was twenty-eight thousand dollars. The bill of sale describes said bark as “ now lying at Portland, not yet registered, but described as follows, to wit:
“ Ira Milliken, master carpenter, of Scarborough, do cer*230tify, that the bark named the Oak Hill was built under my direction, at Scarborough, during the year 1854, for John Libby 3d, of Scarborough, State of Maine; that the said bark is United States built; has two decks; three masts; is one hundred and thirty-seven feet and 'six inches in length; twenty-nine feet five and a half inches in breadth, and fourteen feet and eight and three-fourths inches in depth, and of five hundred and forty-seven and twenty-seven ninety-fifths tons burthen; as witness my hand the day and year aforesaid. (Signed) Ira Milliken.”
Then follow covenants of general warranty of title.
The proof in the case shows that on an accurate admeasurement, the bark was not as long, wide nor deep as specified in the carpenter's certificate recited above, and that she did not measure as much by thirty-seven and thirty-nine ninety-fifths tons as therein specified.
There is no evidence that either party examined the vessel or made any measurement of her dimensions before the sale.
On these facts the presiding judge ordered a nonsuit, and the plaintiffs excepted.
The books are full of cases in which the question of warranty or no warranty is discussed. These cases are by no means all consistent with each other. In an early case, Chandelor v. Lopus, 2 Chokes’ Jac., 2: it was held that the bare affirmation that the article sold was a bezoar stone, without warranting it to be so, is no cause of action. The doctrines of this case, though received with approbation in England and in this country, have not been adopted in both this state or Massachusetts without some qualification, rendered necessary, perhaps, from the imperfect manner in which the original case is reported. The inference from the report is, that unless there be an express warranty, in terms, an action for breach of warranty will not lie; that bare words of affirmation will not, in law, constitute a warranty.
The established doctrine now is, that to create an express warranty the word warrant need not be used, nor is any *231precise form of expression necessary, but if the vender at the time of the sale affirms a fact as to the essential qualities of his goods, as an inducement to the sale, in clear and distinct terms, and the vendee purchases on the faith of such affirmations, that will constitute an express warranty. Henshaw v. Robbins, 9 Met., 83; Bryant v. Crosby, 40 Maine R., 9. Affirmations of quantity and quality, which are made pending the negotiations for a sale, with a view to procure a sale, and having that effect, will be regarded as a warranty. Parsons’ Mercantile Law, 57. To give simple representations or affirmations this effect, they must be of a character to enter into the essential elements of the contract — to constitute a substantial inducement to the purchase. If the language used is merely by way of description, to identify the thing sold, and not for the purpose of describing its quantity or quality, then they are to be treated as mere words of description and not of warranty.
The express terms of warranty in the bill of sale before ns are clearly confined to the title, and do not apply to the dimensions or quality of the bark. Are the descriptive words of the carpenter’s certificate incorporated into this bill of sale, to be construed as terms of warranty? Ordinarily the number of tons in a vessel, like the quantity of land in a deed, are treated as matters of description only, and not of warranty. 1 Greenl. Ev., 26, and note; Dyer v. Lewis, 7 Mass., 284.
So, too, where articles capable of division and enumeration are sold in the aggregate, the parties intending to sell the whole for a given price, an enumeration of the articles and fixing a price in detail will be treated as matter of description and not of warranty. Thus in the case of Covas v. Bingham, vol. 22, Eng. Law and Eq. Rep., 183, the original defendants sold the plaintiff a cargo Ibralia Indian corn, sixteen hundred and sixty-seven and three-fifths quarters, at thirty shillings per quarter. The corn was then afloat, and was sold by the bill of lading. On measurement the corn fell short fifty-three and one-tenth quarters. For this defic*232iency the plaintiff brought his action and recovered in the county court. But on error, in the Queen’s Bench the judgment was reversed. Lord Campbell remarked, “ I think that the intention of the parties, to be gathered from the contract itself was, that the cargo should be taken by the purchaser for better or for worse, for less or for more.”
In the case before us a round sum was paid for the bark, as a whole. She was not purchased at a specific price by the ton, the price for the whole ship to be determined by the number of tons she should measure, but was sold as an entire ship, at a fixed price in solido, larger or smaller. While we do not intend to assert that a bill of sale of ship may not contain matter of description, as to her capacity, which may properly be construed to be representations amounting to and constituting a warranty, we are of opinion that in this case the certificate of the master, as incorporated into this bill of sale, is to be treated as mere matter of description, and does not constitute a warranty as to the dimensions of the bark, and was not so intended by the parties. The contract being in writing, is to be construed by the court, and not by the jury.
Nonsuit confirmed.