This action was brought against the defendants, as purchasers of an article called, at the time of the sale, blue vitriol, to recover damages for refusing to take and pay for the same; and, upon the trial, the court refused to submit the evidence do the jury, and ordered a verdict for the plaintiff.
The defendants failed to establish their defense of fraud, and upon that question I think there was no evidence to submit to the jury. We have only, therefore, to consider whether there was evidence tending to show that the plaintiff at the sale, warranted the article to be blue vitriol, sound and in good order, and that there was a breach of this warranty.
It is unquestioned that there was a warranty that the article was sound and in good order, and I am quite clear that there was no breach of this warranty. It was good, sound Salzberger, or mixed vitriol. It was just as it was made, not damaged or in any way out of order. It was in its natural, normal condition, and it could not be said of such an article that it was unsound.
Did the plaintiff warrant the article to be blue vitriol? It is unquestioned that at the time of the sale, through his auction*115eer, he represented it to be blue vitriol, and that the defendants bought it as such, relying upon that representation.
To constitute a warranty, it is not necessary that the word warranty should be used. It is a general rule that whatever a seller represents at the time of a sale is a warranty. (Wood agt. Smith, 4 Car. & P., 45.) In Stone agt Denny, (4 Metcalf, 151), it is said that the courts, .in their later decisions, " manifested a strong disposition to construe liberally in favor of the vendee, the language used by the vendor, in making any affirmation as to his goods, and have been disposed to treat such affirmation as warranties whenever the language would reasonably authorize the inference that the vendee so understood it.” In Oneida Manufacturing Society agt. Lawrence, (4 Cowen, 440). Chief Justice Savage says: “ There is no particular phraseology necessary to constitute a warranty. The assertion or affirmation of the vendor concerning the article sold must be positive and unequivocal. It must be a representation which the vendee relies on, and which is understood by the parties as an absolute assertion, and not the expression of an opinion.” And generally, when the representation is not in writing, the question of warranty is to be sumitted to the jury. (Duffee agt. Mason, 8 Cowen, 25.)
It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a warranty. If the contract be in writing and it contains a clear warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares; and so, if it be by parol, and the representation as to the character or quality of the article sold be positive, not mere matter of opinion or judgment, and the vendee understands it as a warranty, and he relies upon it, and is induced to buy by it, the vendor is bound by the warranty, no matter whether he intends it to be a warranty or not. He is responsible for the language he used, and cannot escape *116liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee.
Here it is not questioned that the language used was sufficient to constitute a warranty that the article sold was sound and in good order, and why should it not as well extend to the character of the article ? When a buyer purchases an article, whose true character he cannot discover by any examination which it is practicable for him to make at the time, why may .he not rely upon the positive representation of the seller as to its character as well as to its quality and condition? I can discern no distinction in principle in the two kinds of representations, and yet it is claimed on behalf of the plaintiff" that there is a distinction, and certain cases are cited to uphold it, which I will proceed briefly to consider.
The first is the celebrated case of Chandler agt. Lopus, (Cro. Jac. 4.) That was an action upon the case, and the plaintiff" alleged in his declaration that the defendant sold him a stone, which he affirmed to be a bezar-stone, whereas it was not a bezar-stone. The defendant plead not guilty, and the plaintiff" had a verdict. The case was taken by writ of error to the exchequer chamber, and it was there held that the declaration was not good, “ for the bare affirmation that it was a bezar-stone, without warranting it to be so is no cause of action.” The court say, " Every one in selling his' wares will affirm that his wares are good, or the wares which he sells are sound; yet, if he does not warrant them to be so, it is no cause of action.” This was the reason assigned for the decision. It was not denied that the defendant would have been liable if he had warranted the stone, but a mere affirmation was held not to be a warranty. No distinction was made between an affirmation as to the character of an • article and an affirmation as to its condition or quality. The doctrine laid down is, that a mere affirmation or representation as to the character or quality of goods sold will not constitute a warranty; and that doctrine has long since *117been exploded, and the case itself is no longer regarded as good law in this country or England. (Hilliard on Sales, 237, note; 2 Kent’s Com., Comstk’s ed., 633, note a; 2 Smith’s Leading Cases, 5 Am. ed., 238; Bradford agt. Manly, 13 Mass., 139; Howe agt. Denny, 4 Metcalf, 151.)
The case of Seixas agt. Wood, (2 Caines, 48), seems to have been decided mainly upon the authority of the case of Chandler agt. Lopus. That was an action on the case for selling peacham wood for brazilletto, the former worth hardly anything,- the latter- of considerable value. The defendant advertised the wood as brazilletto; showed plaintiff the invoice in which it was so described, and billed it to the plaintiff as such. The plaintiff had a verdict subject to the opinion of the court, and the court held that there was no expressed warranty, and that the defendant was not therefor liable. There was no intimation in the opinion delivered that there was any difference between a warranty as to the character of an article sold and warranty as to its condition and quality. The court simply held that the representation , on the part of the defendant did not amount to an express warranty. They were laying down broadly the common law doctrine of caveat emptor and combating the implied warranties of the civil law. Hence great stress was laid upon the requirement of an express warranty. The rule, as thus laid down has been thoroughly overturned since the courts hold that any positive affirmation or representation as to the character or quality of an article sold, may constitute a warranty. The case has been much questioned, and can no longer be regarded as authority for the precise point decided. (2 Kent’s Com., Comstk’s ed., 633; Howe agt. Denny, 4 Metcalf, 151 ; Henshaw agt. Robins, 9 Metcf., 83, 89; Brainard agt. Spring, 42 Barb., 470; Hart agt. Wright, 17 Wend., 267, 271; Barrkins agt. Becan, 8 Serg, & R., 37.) The case holds that a vendor is liable upon an express warranty of the character of the article sold, and the more recent cases hold that a positive affirmation understood *118and relied upon as such by the vendee, is an express warranty.
The case of Swett agt. Colgate, (20 Johns., 196), is quite analogous to the case of Seixas agt. Woods, and was decided mainly upon the authority of that case. The defendants purchased at auction, goods invoiced, advertised and sold as barillo, when, in fact, it was kelp, a much inferior article. It came before the supreme court upon a case containing the facts, and the court exercising the province of a jury, drew the inference from all the facts of the case that there was no warranty; laying down, however, the rule, that if there had been a warranty the vendors would have been liable. No intimation is contained in the case that there is any difference between an affirmation by the vendor as to the character of the article sold and one as to its quality or condition. Upon the same state of facts, as the law is now settled, it would be a question of fact for the jury whether or not there was a warranty.
The cases of Seixas agt. Wood, and of Swett agt. Colgate, have been frequently cited in our courts, and have, doubtless, influenced, and, it may be, controlled the decisions i.n other cases. The propositions of law announced in them are sufficiently correct; but in view of the rules of law as now settled in this and other states, I am of opinion that the law was not properly applied to the facts appearing in those cases.
Here, then, was a positive representation, that the article sold was blue vitriol, the plaintiff meant the purchaser to understand that it was blue vitriol, and he sold it as such. The defendants relied upon the representation, believing it to be blue vitriol, and bought it as such. If, upon these facts, the court was not authorized to hold as matter of law that there was a warranty, it was at least bound to submit the question of warranty to the jury. In Allen agt. Lake, (18 Adol. & Ellis, N. S., 561), the defendant sold plaintiff a parcel of turnip-seed and gave them a sold note, in which it *119was described as “ Skirving’s Swedes.” It proved not to be such, but of an inferior aud spurious kind. The court of Queen’s bench held that the statement in the sold note was not mere representation or matter of description, but that it amounted to a warranty that the seed was Skirving’s Swedes. In Bridge agt. Wain, (1 Starkie, N. P., 410), the defendant sold to the plaintiff a quantity of scarlet cuttings intended for the Chinese market, and which were understood among merchants to mean cuttings of cloth only without mixtures of serge or other material; and it-was proved that the article sold contained a quantity of serge, and that a part consisted of much smaller shreds than that usually sent to China, and that it would be very unprofitable, if not wholly unsaleable. There was no special warranty, but it appeared that in the bill of parcels the goods" were described as scarlet cuttings ; and Lord ELLENBOROUGH ruled if they were sold by the name of scarlet cuttings and were so described in the invoice, an understanding that they were such would be inferred. In Power agt. Barhan, (4 Adol. & Ellis, 473), .the action was for breach of warranty on the sale of pictures. It was proved, among other things, that the defendant, at the time of the sale, gave the following bill of parcels: “ Four pictures, views in Venice. Canaletto, £160.” The judge left it to the jury, upon this and the rest of the evidence, whether the defendant had contracted that the pictures were those of the artist named, or whether his name had been used merely as matter of description or intimation of opinion. The jury found for the plaintiff, saying that the bill of parcels amounted to a warranty. The King’s bench held that the question of warranty was rightly left to the jury, and that the verdict should not be disturbed. Lord Denman says: “It was for the jury to say, under all the circumstances, what was the effect of the words, and whether they implied a warranty of genuineness or conveyed only a description or an expression of opinion.” In Barrekins agt. Bevan, (3 Serg & Rawls., 37), Rogers, J. says:
*120“ From a critical examination of ail the cases it may be safely ruled that a sample or description in a sold note, advertisement, bill of parcels or invoice, is equivalent to an express warranty that the goods are what they are described or represented to be by the vendor.” In Bradford agt. Manly, (13 Mass., 144), Chief Justice Parker refers to a ease which came before him at nissi prius, of which he says: An advertisement appeared in the papers, which was published by a very respectable mercantile house, offering for "sale good Caraccas cocoa. The plaintiff made a purchase of a considerable quantity and shipped it to Spain, having examined it at the store before he purchased ; but he did not know the difference between Caraccas and other cocoa. In the market to which he shipped it there was a considerable difference in . favor of Caraccas. It was proved that the cocoa was of the growth of some other place, and that it was not worth so much in that market. I hold that the advertisement was equal to an express warranty, and the jury gave damages accordingly. The defendants had eminent counsel, and they thought of saving the question, but afterwards abandoned it, and suffered judgment to go.” In Henshaw agt. Robins, (9 Metcalf, 83), it was held in a case quite analogous to the one now under consideration, that when a bill of parcels is given upon a sale of goods describing the goods, or designating them by a name well understood, such bill is to b econsidered as a warranty that the goods sold are what they are thus described or designated to be, and that this rule applies, though the goods are examined by the purchaser at or before the sale, if they are so prepared and present such an appearance as to deceive a skillful dealer.
It can make no difference that in most of the eases cited the desription of the article sold was contained in a sold note or bill of sale. The same affirmation made orally must, upon principle, have the same force and effect.
I, therefore, reach the conclusion, both upon principle and authority, that upon the facts of this case a jury might *121properly have inferred that there was upon the sale a warranty, that the article sold was blue vitrol. It was, at least, the duty of the court to have submitted the question of warranty to the jury; I think the facts were so clear and undisputed that the court could, without error, have decided as a question of law that there was a warranty, but this it is unnecessary to decide upon this appeal;
The only remaining question to be considered is whether there was a breach of this wartanty, and this can need but little discussion. The article sold, if it was known at all in market, was known by another name. It had only from 17 to 25 per cent, of blue vitrol in it. It was not an inferior article of blue vitrol, but a different substance with 'a small admixture of blue vitrol.
The judgment should therefor be reversed and a new trial granted, costs to abide event.
Earl, C. reads for reversal; all concur; judgment reversed; new trial granted; costs to abide event.