majority">Wood, J.,

(after stating the facts.) There was no demurrer to the complaint. There was no allegation that the representations were warranties; but the parties treated the complaint as stating a cause of action upon a warranty, and tried the case upon that theory, and we will so consider it here. Appellants denied that any false representations were made,' and denied that the representations constituted a warranty. There- was proof tending to show that appellants refused to sell until appellee had fully inspected the pump, and had made a test of the pump’s power to throw water at the tub. There was proof tending to show that the representation that the pump would do the work for appellee was coupled with the condition that it was placed at the “sump” and properly connected, and that appellants did not represent that this pump would lift water thirty-three feet, but that thirty-three feet was the limit for raising water where the resistance depended on atmospheric pressure. The evidence tended to show that these statements' were made before and during an inspection of the pump by appellee. The court, in the part of the instruction objected to, and other portions, treats the representations-as a warranty. We think,'under the evidence and pleadings, the court should have submitted to the jury the question whether the representations were warranties. The law is well settled that any “affirmation of a material fact, as a fact, intended by the vendor as and for a warranty, and relied upon as such, is sufficient; but mere representations by way of commendation or which merely express the vendor’s opinion, belief, judgment or estimate, do not constitute a warranty.” Simplex commendatio non obligat.

Whether a particular representation is an affirmance of a positive fact, or, on the other hand, only praise and commendation, is a question for the jury, where the meaning is ambiguous, and the intention of the parties may be gathered from surrounding circumstances.” 2 Benj. on Sales, American Notes, p. 664, and authorities cited; James v. Bocage, 45 Ark. 284. For the error indicated the judgment is reversed, and the cause ^is remanded for new trial.

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