Maeshall, J.
The learned circuit judge, in granting the nonsuit, followed Seixas v. Woods, 2 Caines, 48, and a few other authorities in this country in harmony therewith, most of such authorities being decisions of the supreme court of Pennsylvania to the effect that, in the sale of an article, wTith opportunity on the party of the vendee to inspect it before purchasing, the vendor being neither' the manufacturer nor producer of such article, the maxim caveat emptor applies both as to the quality and identity thereof. The Seixas Case was decided in 1S04. Kent, J., who wrote the opinion, grounded the decision on Chandelor v. Lopus, Cro. Jac. 4, decided in 1603, where it was held that if a person sell a thing for what it is not, falsely but innocently [317] misrepresenting its species, no action will lie against him to make good his representations. The case was this: the plaintiff sold a jewel, affirming as a fact, in order to make the sale, that it was a hezoar stone, which it was not. It will be noted that the doctrine of that case is directly contrary to the modern rule that he who falsely affirms the existence of a material fact in regard to an article offered by him for sale, for the purpose of making a sale thereof, which affirmation is relied upon without negligence by the purchaser, to his damage, is guilty of an actionable fraud. As was said by this court in effect, in Cotzhausen v. Simon, 47 Wis. 103, if representations by a vendor be material and false, and the-vendee rely upon them to his injury, he may recover of the vendor on the ground of fraud the damages he sustains thereby which are the natural and proximate results of the wrong; and such is the case whether the falsehood be wilful or not, for a vendor has no right to make even a mistake in facts material to a contract except under penalty of responding in damages. The law is quite as well settled in this state contrary to the ancient rule upon which the Seixas Oase was decided, on the subject of whether the positive assertion of a fact, made to induce a sale, may constitute a warranty, as that it may an actionable fraud, regardless of any element of intentional wrong. Austin v. Nickerson, 21 Wis. 542.
This opinion might be extended to great length by a review of the cases on the subject under consideration, but we shall forego any long discussion of the matter. The Seixas Case was overruled in Hawkins v. Pemberton, 51 N. Y. 198. The law as there stated has been since followed in New York. White v. Miller, 71 N. Y. 118. In the Hawkins Case it was said that the court in Seixas v. Woods, followed Chandelor v. Lopus, Cro. Jac. 4, the doctrine of which being that a mere affirmation as to the character or quality of goods sold will not constitute a warranty, and that such doctrine has [318] been, long since overruled in this country and England; citing Hilliard, Sales, 237; 2 Kent, Comm. (Comstock’s ed.), 633, note a; 2 Smith, Lead. Cas. (5th Am. ed.), 238; Bradford v. Manly, 13 Mass. 139; Stone v. Denny, 4 Met. 151. The following cases will show that the doctrine of Chandelor v. Lopus is not recognized as good law by the English courts: Allen v. Lake, 83 Eng. C. L. 560, 18 Q. B. 560; Barr v. Gibson, 3 Mees. & W. 390; Shepherd v. Kain, 5 Barn. & Ald. 240; Bridge v. Wain, 1 Starkie, 505; Power v. Barham, 4 Adol. & E. 473. In Allen v. Lake there was a sale of turnip seeds as Skirving’s Swedes. The plants grown from such seeds were of a kind other than the variety known as Skirv-ing’s. The. question presented was whether the sale of the seed as being of a particular kind constituted a warranty, and on that Colebidoe, J\, said in substance, that the statement regarding the kind of seed sold, which accompanied the sale, was a warranty, not a mere representation; that if it were limited to an assertion that the seed was turnip seed, it would, without doubt, constitute a warranty of the seed being turnip seed; and on the same principle, the assertion that the seed was turnip seed of a particular kind was an undertaking that it should answer that description. White v. Miller, supra, referred to that as the modern and correct doctrine, it being there said that, “ a dealer who sells an ax-ticle, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a representation by the seller that it is the thing described; and this constitutes a warranty.”
'With but few exceptions, which we shall not take time or space to refer to specifically, the judicial authorities and the text writers as well are in harmony with the foregoing. Biddle, Warranties, § 108. That rule is just. It holds a dealer responsible for breach of contract when he sells a thing as being of a particular kind, if it does not answer the [319] description, the vendee not knowing whether the vendor’s representations are true or false, but relying upon them as true. There is no good reason why a dealer should be permitted to exhibit seed to his customers, asserting it to be rape seed when it is something else, and then protect himself from the consequences of his falsehood by a plea of ignorance. The injury by the deception is just as great whether it be wilful or innocent. The customer has the same right to rely upon the representation in the one case as in the other. Knowledge on the part of the' vendor is not essential either to actionable fraud or a contract of warranty.
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Maeshall, J.
The learned circuit judge, in granting the nonsuit, followed Seixas v. Woods, 2 Caines, 48, and a few other authorities in this country in harmony therewith, most of such authorities being decisions of the supreme court of Pennsylvania to the effect that, in the sale of an article, wTith opportunity on the party of the vendee to inspect it before purchasing, the vendor being neither' the manufacturer nor producer of such article, the maxim caveat emptor applies both as to the quality and identity thereof. The Seixas Case was decided in 1S04. Kent, J., who wrote the opinion, grounded the decision on Chandelor v. Lopus, Cro. Jac. 4, decided in 1603, where it was held that if a person sell a thing for what it is not, falsely but innocently [317] misrepresenting its species, no action will lie against him to make good his representations. The case was this: the plaintiff sold a jewel, affirming as a fact, in order to make the sale, that it was a hezoar stone, which it was not. It will be noted that the doctrine of that case is directly contrary to the modern rule that he who falsely affirms the existence of a material fact in regard to an article offered by him for sale, for the purpose of making a sale thereof, which affirmation is relied upon without negligence by the purchaser, to his damage, is guilty of an actionable fraud. As was said by this court in effect, in Cotzhausen v. Simon, 47 Wis. 103, if representations by a vendor be material and false, and the-vendee rely upon them to his injury, he may recover of the vendor on the ground of fraud the damages he sustains thereby which are the natural and proximate results of the wrong; and such is the case whether the falsehood be wilful or not, for a vendor has no right to make even a mistake in facts material to a contract except under penalty of responding in damages. The law is quite as well settled in this state contrary to the ancient rule upon which the Seixas Oase was decided, on the subject of whether the positive assertion of a fact, made to induce a sale, may constitute a warranty, as that it may an actionable fraud, regardless of any element of intentional wrong. Austin v. Nickerson, 21 Wis. 542.
This opinion might be extended to great length by a review of the cases on the subject under consideration, but we shall forego any long discussion of the matter. The Seixas Case was overruled in Hawkins v. Pemberton, 51 N. Y. 198. The law as there stated has been since followed in New York. White v. Miller, 71 N. Y. 118. In the Hawkins Case it was said that the court in Seixas v. Woods, followed Chandelor v. Lopus, Cro. Jac. 4, the doctrine of which being that a mere affirmation as to the character or quality of goods sold will not constitute a warranty, and that such doctrine has [318] been, long since overruled in this country and England; citing Hilliard, Sales, 237; 2 Kent, Comm. (Comstock’s ed.), 633, note a; 2 Smith, Lead. Cas. (5th Am. ed.), 238; Bradford v. Manly, 13 Mass. 139; Stone v. Denny, 4 Met. 151. The following cases will show that the doctrine of Chandelor v. Lopus is not recognized as good law by the English courts: Allen v. Lake, 83 Eng. C. L. 560, 18 Q. B. 560; Barr v. Gibson, 3 Mees. & W. 390; Shepherd v. Kain, 5 Barn. & Ald. 240; Bridge v. Wain, 1 Starkie, 505; Power v. Barham, 4 Adol. & E. 473. In Allen v. Lake there was a sale of turnip seeds as Skirving’s Swedes. The plants grown from such seeds were of a kind other than the variety known as Skirv-ing’s. The. question presented was whether the sale of the seed as being of a particular kind constituted a warranty, and on that Colebidoe, J\, said in substance, that the statement regarding the kind of seed sold, which accompanied the sale, was a warranty, not a mere representation; that if it were limited to an assertion that the seed was turnip seed, it would, without doubt, constitute a warranty of the seed being turnip seed; and on the same principle, the assertion that the seed was turnip seed of a particular kind was an undertaking that it should answer that description. White v. Miller, supra, referred to that as the modern and correct doctrine, it being there said that, “ a dealer who sells an ax-ticle, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a representation by the seller that it is the thing described; and this constitutes a warranty.”
'With but few exceptions, which we shall not take time or space to refer to specifically, the judicial authorities and the text writers as well are in harmony with the foregoing. Biddle, Warranties, § 108. That rule is just. It holds a dealer responsible for breach of contract when he sells a thing as being of a particular kind, if it does not answer the [319] description, the vendee not knowing whether the vendor’s representations are true or false, but relying upon them as true. There is no good reason why a dealer should be permitted to exhibit seed to his customers, asserting it to be rape seed when it is something else, and then protect himself from the consequences of his falsehood by a plea of ignorance. The injury by the deception is just as great whether it be wilful or innocent. The customer has the same right to rely upon the representation in the one case as in the other. Knowledge on the part of the' vendor is not essential either to actionable fraud or a contract of warranty.
Applying the principle stated to the fact’s of this case, Vhat was the contract between the parties ? Upon what did their minds meet? The answer must-be, that the defendant would sell to the plaintiff rape seed and that the seed delivered was of that kind. Opportunity on the part, of the plaintiff to inspect does not militate against his right to insist upon the condition of the contract as to the identity -of the article delivered being made good,, since he relied wholly on his contract, not knowing- whether the article he-received answered such condition or not, and not being chargeable with negligence because he did not know. In-such a case the doctrine of implied warranty does not apply,, but the doctrine of express warranty does. No particular form of expression or words is necessary to make an express-contract of warranty. The word “ warranty ” is not necessary to it. An affirmation of the fact as to the kind or quality of an article offered for sale, of which the vendee is ignorant but upon which he relies in purchasing such article, is as much a binding contract of warranty as a formal agreement using the plainest and most unequivocal language on the subject. In Benj. Sales (6th ed.), 623, 625, as conclusions from a review of authorities in this country and England, including the New York cases overruling Seixas v. Woods, it is sard: “ All agree that any positive affirmation. [320] -of a material fact as a fact, intended by tbe vendor as and •for a warranty, and relied upon as such, is sufficient ” to constitute a warranty. “ The better class of cases hold that a positive affirmation of a material fact as a fact, intended to be relied upon as such and which is so relied upon, constitutes in law a warranty, whether the vendor mentally intended to warrant or not.” The latter is the doctrine of this court, as indicated by numerous cases where it has been applied. Austin v. Nickerson, 21 Wis. 542; Giffert v. West, 33 Wis. 617; Neave v. Arntz, 56 Wis. 174; White v. Stelloh, 74 Wis. 435.
It follows from the foregoing that the decision of the trial court that the doctrine of caveat emrptor applies to the facts of this case, and that the evidence does not justify a finding that the defendant warranted the seed to plaintiff to be rape seed and that he was entitled to recover for a breach of it, was erroneous, and the nonsuit was improperly granted. ,
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.