An express warranty is created by any affirmation of fact made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain. In order for an express warranty to exist, there must be some positive and unequivocal statement concerning the thing sold which is relied on by the buyer and which is understood to be an assertion concerning the items sold and not an opinion. A representation which expresses the seller's opinion, belief, judgment or estimate does not constitute an express warranty. The primary question is whether there is an affirmation of fact which amounts to an express warranty or whether the representations are merely opinions. The answer to the question results from the consideration of all the circumstances surrounding a sale and should be made by the trier of fact.
Appellant buyer purchased a horse from appellee sellers. The horse’s description in the sale brochure represented him as quiet and gentle. Asserting that appellees had expressly guaranteed that the horse would never buck, appellant brought suit for breach of warranty when the horse unceremoniously ejected appellant from the saddle. The jury returned a verdict for appellees, and the appellant’s post-judgment motions were denied. On appeal, the state supreme court affirmed the judgment.
Did the description in the sale brochure that the horse was gentle constitute an express warranty that the horse would never buck?
Although the horse had been gentle in the past, testimony showed that its disposition was affected by different things and that even gentle horses bucked. The description in the brochure was merely a well-founded opinion, but even if it constituted an express warranty, the warranty was not breached. There was also overwhelming evidence that appellee sellers did not misrepresent the horse's disposition at the time it was sold. Appellant buyer's alleged naivete was contradicted by the presence of an expert who helped him select the horse.