(dissenting.) I was very much embarrassed upon the trial of the action, by the form of the answer and the uncertainty of the evidence to establish either an actionable warranty or fraud, and directed a verdict for the plaintiff, without attempting to submit to the jury any particular question arising upon the pleadings and proofs.
Upon looking at the answer, I am unable to discover any averment that the plaintiff knew that his recommendations or assertions as to the wine plants sold to the defendant were false. In other words, there is no averment of a scienter, and I think I was right in refusing to submit to the jury the question of fraud.
The answer is remarkable for its general vagueness and uncertainty as to the particular matters upon which the defendant relies to sustain a warranty. The allegations of a warranty may be grouped together as follows: First, that the said plants were wine plants, and not plants known as rhubarb or pie-plant; secondly, that they were of much greater value; thirdly, that they would produce several thousand dollars worth of valuable high flavored wine to the acre; fourthly, that they would produce five thousand dollars to the acre and sell *178for two dollars a gallon, and would improve 25 per cent, in two or three years ; and finally, that the plaintiff had been engaged in the business, and had made wine of the quality above mentioned, and had been offered two dollars a gallon for it.
On reading the testimony, I am unable to discover any evidence that there was a breach of the warranty as to the species of plant. The plants sold the defendant were such as were known and designated as the. wine plants, or that variety of the pie or rhubarb plant which had been used for manufacturing wine. In this respect the case is entirely unlike that of Passinger v. Thorburn, (34 N. Y. 634.)
As to the productiveness of the plant, and the quality of wine which it would make, the defendant says he relied upon what the plaintiff told him. In another place he says he tasted of the wine, and relied upon that, as well as upon what the plaintiff told him. He had read the printed statement, and he says in another place that the plaintiff represented the value of the plant substantially as therein recommended. In order to sustain this defence, the evidence should be sufficient to authorize the jury to find that the plaintiff warranted that the' plant would produce the quantity and quality of wine set forth in the printed recommendations, and which were mentioned by the plaintiff, to induce the defendant to make the purchase; that it was understood by the parties that the plaintiff intended to give his own personal warranty, and to answer in damages for a breach of the warranty. If the defendant was satisfied without requiring a warranty, he cannot recover upon the mere representation of the quality by the plaintiff, unless he can show that such representations were bottomed on fraud. (Chitty on Con. 393.) Thus in many instances the positive representation of the seller is not, from the nature of the case, to be regarded as a warranty, but merely as an expression of an opinion on a matter of *179which he could havq no certain knowledge, and on which the purchaser was equally capable of forming an opinion. (Id.) To make an affirmation at the time of the sale a warranty, it must appear to have been so intended, and not to have been a mere expression of opinion. (Id. note 4.)
[Onondaga General Term, June 1, 1869.In my opinion there is no ground for assuming that either party expected or believed that the plants were sold with warranty. If the defendant had requested the plaintiff to be amenable in damages for the failure of his recommendations or the recommendations contained in the printed certificates, there is no one who can seriously believe that he would have assumed such an obligation.
I think the court have gone far enough in sustaining actions of this class, and in some cases have allowed the jury to presume a warranty from mere words of recommendation, when it was quite evident that no warranty was contemplated.
A purchaser in this class of cases must have some judgment, forethought and discretion, or the law will leave him without remedy. If the plaintiff had sold the defendant a different article from what he affirmed it to be, the case might come within that of Passinger v. Thorburn, (supra.) But having sold him the genuine rhubarb wine plant, such as was used for making wine, I do not think the recommendations reiterated from the printed certificates can be construed into a warranty. If the defendant relied upon this, it was his own folly. The motion for a new trial should be denied.
New trial granted.
Bacon, Foster, Mullin and Morgan, Justices.]