dissenting: There' is nothing new in this case. The Court has heretofore tramped all over the same ground many times. See Whitehurst v. Ins. Co., 149 N. C., 273, 62 S. E., 1067, and Robertson v. Halton, 156 N. C., 215, 72 S. E., 316, for statement of applicable principles and collection of authorities. See also full annotation 56 A. L. R., 13.
The defenses alleged are breach of warranty and fraud. The first is not available to the defendant because of the stipulation in the contract. Harvester Co. v. Carter, 173 N. C., 229, 91 S. E., 840; Machine Co. v. McClamrock, 152 N. C., 405, 67 S. E., 991. The second is. Machine Co. v. McKay, 161 N. C., 584, 77 S. E., 848. Warranty is contractual. Fraud is not. No contract or stipulation can stand in the face of fraud. Machine Co. v. Bullock, 161 N. C., 1, 76 S. E., 634; Miller v. Howell, 184 N. C., 119, 113 S. E., 621; Tyson v. Jones, 150 N. C., 181, 63 S. E., 734; Anno. 95 A. L. R., 768. The case was tried on this latter theory.
The allegations of fraud are to be read in the light of the circumstances and the situation of the parties. Small v. Dorsett, 223 N. C., 754.
For many years the defendant had operated a laundry and dry-cleaning business in Lumberton with machinery of old type and style. On 3 June, 1940, plaintiff’s agent, who said “he had been having lots of trouble” with the model used by the defendant, induced the defendant to exchange his old machinery for machinery of a later design and model, representing to the defendant that the later type and model machinery would “do better work, more economically and with less labor” than the machinery then used by the defendant in his business. Upon these representations, the defendant, who was not familiar with the machinery which plaintiff wished to sell, agreed to the exchange, and executed his notes for the difference in the trade. The new machinery was installed in defendant’s place of business and it was immediately discovered that the machines were not as represented. It took more labor to operate them, and even then they did not run satisfactorily. Plaintiff’s agent came to see about them. “He saw at that time that they would not operate,” and he sent a representative from the factory to fix them. The representative said he could not fix them without some parts from the factory, which he promised to send but they never came.
As compared with the old machines “they don’t turn out as good work, and they don’t turn out as much work, and it takes more people to operate them.” The witness explained in some detail wherein the machines were defective.
Plaintiff’s agent admitted the substance and purpose of the representations. He said: “I told Mr. Skinner that my Company had had some difficulty with the kind, of press that he then had in his place of business, but that my Company had remedied that and had built a new press *292which was an advanced design and that it would do the work that was required of machines of that character in a laundry, and I told him it would do it with greater economy than the machines he then had and that it would turn out more work than the machines he then had, and would turn out superior work to the machines he then had, and I meant for him to rely on my statements and I made these statements for the purpose of inducing him to buy my machines.”
There is evidence that these representations were false. The jury has found they were fraudulently made. Are they sufficient in law to withstand motion for judgment on the pleadings? The trial court answered in the affirmative. He is supported by the pertinent authorities. Anno. 56 A. L. R., 25 and 113.
It will be noted that the measure of performance was what the old machinery would do. This is the standard which the plaintiff’s agent voluntarily selected for purpose of comparison. The quality of performance of the old machinery was known to both parties; that of the new was unknown to the defendant. The representations relate to measurable and ascertainable facts, not merely to the agent’s opinion of them. 23 Am. Jur., 788; 12 R. C. L., 384; 37 C. J. S., 228. They were made by the agent of a manufacturer of machinery to a user of such machinery for the purpose of inducing a sale. Wolf Co. v. Mercantile Co., 189 N. C., 322, 127 S. E., 208; Peebles v. Guano Co., 77 N. C., 233. If falsely made, they seem quite sufficient to support the defense of fraud. See Register Co. v. Bradshaw, 174 N. C., 414, 93 S. E., 898, and Audit Co. v. Taylor, 152 N. C., 272, 67 S. E., 582, where similar representations were under consideration; also, Food Co. v. Elliott, 151 N. C., 393.
The present case is controlled by the decision in Unitype Co. v. Ashcraft, 155 N. C., 63, 71 S. E., 61. For all practicable purposes, the two cases are on all-fours. There, Walker, J., speaking for the Court, said: “There have recently been several cases of this kind before the Court, and we have held that while expressions of opinion by a seller, amounting to nothing more than mere commendation of his goods — puffing his wares, as it is sometimes called — or extravagant statements as to value or quality or prospects, are not, as a rule, to be regarded as fraudulent in law, yet 'when assurances of value are seriously made, and are intended and accepted and reasonably relied upon as statements of fact, inducing a contract, they may be so considered in determining whether there has been fraud perpetrated; and though the declarations may be clothed in the form of opinions or estimates, when there is doubt as to whether they were intended and received as mere expressions of opinion or as statements of facts to be regarded as material, the question must be submitted to the jury.’ 14 A. & E., 35; 20 Cyc., 124.”
*293The eases of Wolf Co. v. Mercantile Co., 189 N. C., 322, 127 S. E., 208; Machine Co. v. McKay, supra; and Machine Co. v. Bullock, supra, are likewise directly in point. Also accordant in principle is tbe case of Machine Co. v Feezer, 152 N. C., 516, 67 S. E., 1004.
If these cases are to stand, the judgment below is correct.
'Winbok.NE and DeNNy, JJ., concur in this dissent.