¶1 Dissenting:
¶2 In the bill of particulars is set forth that the defendant *501 expressly warranted that the anti-freeze “was safe and harmless for use in the radiator of an automobile and but for which he would not have so purchased and used said Cascade Anti-Freeze.” The evidence proves the allegation, particularly in view of §8392 GC, which provides that any affirmation of fact made to induce the buyer to purchase and upon which he relies, is an express warranty.
¶3 The defendant knew that this anti-freeze would be used in the radiator of automobiles. That was the very purpose for which it was manufactured and used.
¶4 Had this action been instituted by the original buyer from the defendant, who had used it in his automobile, it is clear that he could have recovered the damage inflicted upon his automobile, resulting from the harmful nature of the substance. Such damage would be the loss directly and naturally resulting in the ordinary course and within the contemplation of the parties, which is the measure of damage ever since Hadley v. Baxendale, 9 Exch. 341, and now in statutory form is found in §8449 GC.
¶5 And when a vendor places such a representation and warranty on a label intended to be passed on until it reaches the ultimate consumer as he did in this case, he must be taken to have made the representation and warranty to the ultimate consumer, who would be the only person likely to suffer by reason of the falsity of the representation and the breach of the warranty. Placing such a warranty on the article sold brings the producer into jural relations with 'the ultimate consumer, because the producer so intends. It is a representation and a warranty made by the producer to the ultimate consumer and creates a privity between them.
¶6 For these reasons, I am of the opinion that the judgment should be affirmed.