I vote for the affirmance of this judgment upon the ground that it is conclusively shown by the testimony of the plaintiff that the genuineness of the book, as an ancient typography, rested alone upon the opinion of himself and others. He understood when he made his purchase that the character of the book for genuineness was a subject of dispute, and, upon this point, his information was quite equal to that possessed by the defendants. The ancient character of the book, the impossibility of establishing with certainty either that it was or was not genuine, and the fact that the plaintiff was informed upon all of these points, conclusively establish that the defendants could do no more than express the opinion that the book was in character what it purported to be. In the nature of things they could do no more than express an opinion, and that opinion, however strongly expressed, cannot be dignified as a warranty. I do not commit myself to the doctrine that it was possible to make the genuineness of the book a subject of warranty. To constitute a warranty there must have been the affirmation of a fact; and it is somewhat difficult to see how there can be the affirmation of a fact where, in the nature of the case, the existence of such fact cannot be established, but must rest in the opinion of the person making the assertion, or in the opinion of another. But assuming that it could be made so subject, it is evident that it would require express words of warranty so certain in character that no other construction could be attached to them. Certainly the evidence upon which to found a warranty in .this case fails ; for, from all that appears, and from all the words used, giving them their strongest significance, it is clear that only an opinion was or could be expressed. The transaction itself admitted of nothing else. Even now, after all the evidence obtainable by either party has been made manifest, it is mere speculation to say that the book is not genuine. Indeed, it is quite probable that if the question had *407been submitted to the jury they would have found that the book was a genuine typography. Certainly they would have so found if the parties had united in asking such a finding. The utter futility of attempting to establish whether the book be genuine or otherwise is a sufficient answer to the claim that a warranty accompanied the sale. This conclusion the authorities citéd by the presiding justice abundantly sustain, and many others might be added.
Judgment and order affirmed, with costs.