¶1In regard to the general merits of this case, the principles which must govern, are too well settled to require much discussion.
¶2As to whether the defendant’s assertions in regard to the quality of the hay were understood to form the basis of the contract, there could be but one opinion. The plaintiff declined to examine the hay, saying he could tell nothing about it. He expressly informed the defendant he wanted it for a particular use, to feed his oxen in spring and summer, while at work upon the Rail Road, and that he must have such hay as would answer that use. The defendant then proceeded to make a statement, in regard to the hay, which brought the quality of the hay within the desideratum. And after the negotiation had continued some days, nothing more being said between the parties, in regard to the quality of the hay, the trade was closed, and plaintiff paid for the hay, as the declaration states, and no question is made upon this point. It is scarcely possible to suppose a case, where it is more absolutely certain, that the defendant’s statements formed the sole basis of the sale, than the present, and in such case the declaration is ordinarily to be regarded as a warranty.
¶3As to how far statements made by the vendor, are to be regarded as an express warranty, every case must depend very much u¿)on its own circumstances. And unless it is apparent, that defendant’s statements, in regal’d to the quality of the hay, were understood by the parties, at the time, as amounting to nothing more than recommendations of the goods, and were matters of opinion merely, and the plaintiff was still left to understand, that he must examine and judge for himself, the case should be submitted to a jury, unless there is a fatal variance.
¶4There is very much in the pressnt case to show, that defendant’s statements ought to be regarded as a warranty.
¶51. They were understood by both parties, as forming the basis of the contract of sale, there being no good opportunity to examine the goods, and none in fact attempted. 2. They were in regard to matters upon which the defendant was supposed, and professed, *118i to have personal knowledge, and what he said, he asserted positively ; therefore he ought to expect to be bound by it. 8. The hay was bought for a particular use, and the defendant knew plaintiff would not buy an inferior article. The sale of the hay then for this particular use, ordinarily implies a certainty that it is fit for the use.
¶6The mere assertion that hay is 'good hay, certainly implies something more than was found in this case, but good hay for the particular use, cut and cured well, in good season, is sufficiently definite one would think.
¶7We think the breach alledged is sufficiently broad. It is even broader than the promise alledged. But the plaintiff must of course be confined to the breach of the contract alledged. And that seems to us to afford a very considerable range, under the proof stated.
¶8Judgment reversed and case remanded.
¶9If the declaration is defective, that question should be made upon demurrer, or in arrest of judgment.