Page:North Dakota Reports (vol. 48).pdf/232

 (3) The court erred in instructing the jury that the defendants alleged and set forth in their answer that a large proportion of them (the cattle) were subsequently afflicted with and had tuberculosis, and by omitting in such connection the allegation of the defendants' answer that the herd in question was afflicted with tuberculosis at the time the same was purchased.

(4) The court erred in charging the jury as follows: In order to determine whether there was an express warranty, it must be shown that there was an express, direct affirmation that the cattle sold were free from the disease of tuberculosis.

(5) The court erred in making and volunteering the remarks, comments, statements, and questions set forth in detail in the specifications of error, and thereby prevented the defendants from having a fair and impartial trial.

Since as we are convinced that the fourth assignment of error is well taken, and that the giving of that instruction constitutes prejudicial and reversible error, it will be unnecessary to consider any of the other assignments of error.

In order to afford a clear understanding of this error, the instruction in full in this regard will be set forth. It is as follows:

"To constitute an express warranty, the term 'warranty' need not be used; no technical set of words are required, and it may be inferred from the affirmation of a fact which induces the purchase on which the buyer relies and on which the seller intended that he should so do, but, of course, the words used must be tantamount to a warranty, and not dubious or equivocal.

"In order to determine whether there was an express warranty, it must be shown that there was an express, direct affirmation that the cattle sold were free from the disease of tuberculosis-the mere expression of an opinion does not constitute a warranty-and in determining whether a statement of the seller is to be deemed a warranty, it is important to consider whether in the statement a seller assumes to assert a fact on which the buyer is ignorant, or merely states an opinion or judgment on a matter on which the seller has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.

"As to whether Mr. Walters, the seller of the cattle, knew that the cattle were diseased or not, makes no difference, and would not relieve