(dissenting).
I do not believe there was any evidence offered by plaintiff to establish her theory of an express warranty by defendant. Defendant’s saleslady told plaintiff that the product would be “good” and that she had “never had any complaints” about it. On cross-examination she confirmed that the saleslady did not say anything or tell her anything about Tint ’N Set, or. the use of it, that was not printed on the can. The most that can be said of these statements by defendant’s saleslady to plaintiff is that there was a “puffing” of the product being sold.
Therefore, I believe that the question squarely presented to us on this appeal is whether the sale of a product, other than food, in a sealed container by a retailer who is not the manufacturer carries with it an implied warranty of fitness.
I would answer the question in the negative. The defendant, a retailer, had nothing to do with the manufacture or packing of Tint ’N Set. The plaintiff asked for the product by its brand name. In a case of this kind the retailer is little more than a *268conduit whereby the product passes from the manufacturer to the consumer.
Although there are different views held on this question, (see Annotation at 79 A.L.R.2d 431, especially section 10) I believe the better reasoned cases are those which hold that no implied warranty of fitness binds a retailer where hair preparations, cosmetics or similar products alleged to have caused injury are sold by a retailer to a purchaser who requests it by its patent or trade name.
The recent case of Esborg v. Bailey Drug Company, Wash., 378 P.2d 298, which had to do with a hair tint preparation marketed under the name of “Nestle Streak ‘N’ Tips”, is in point. Although the State of Washington has enacted the Uniform Sales Act, such Act is merely a codification of the common law in its provisions relevant to the question at issue. Since we follow the common law, the case is applicable here. Concerning the absence of an implied warranty by a retailer, the Supreme Court of Washington said in the Esborg case, supra, (378 P.2d at p. 302) :
“ * * * the instant product, as well as many others of like nature, come to the retailer and consumer alike in sealed, inspection defying containers, frequently on the heels of national, demand-creating, advertising, and occasionally, as in the instant case, without a list of ingredients. They find their way to the shelves of a variety of mul-tiproduct retailers. As a practical matter, it is doubtful that the average retailer stands in any better position, from the standpoint of evaluating their content, than the average consumer.
“Suffice it to say, we have concluded that, where the evidence reveals no more than that the purchaser, relying upon the manufacturer’s reputation, voluntarily selects from the retailer’s shelf, a brand-name product, other than food, sealed in a container, such transaction does not [cause an-implied warranty of fitness or merchantable quality tcrattach] * * ⅜.
“The trial court erred in granting judgment against the defendant retailer.”
In Bel v. Adler, 63 Ga.App. 473, 11 S.E.2d 495, it is said:
“The petition did not set out a cause of action for breach of an implied warranty. There is no implied warranty by a dealer that an article or goods in a perfect appearing original package, manufactured by a reputable manufacturer, which in practical use in retail trade cannot be examined for imperfections, is suitable for the purposes intended. The only warranty by the dealer, in such circumstances, is that the goods are manufactured by a reputable manufacturer. * * * ”
Plaintiff, in the instant case, did not present any evidence that the manufacturer, Tint ’N Set, Inc., was other than a reputable manufacturer. And since there should be no other implied warranty to bind defendant in the instant case, it follows that the trial court erred in failing to sustain defendant’s motion for directed verdict.
I dissent.