The plaintiff seeks to recover the amount he paid to the defendants for the eighty-three boxes of cheese on the theory that there was a failure of consideration and a breach of warranty of title.

Eor the purposes of this case it may be considered that a warranty may have been given by the defendants in one or *564more of three ways: first, by an express oral warranty; second, by an affirmation of title to be found in the language of the undertaking given by the defendants, under sec. 1684Í— 12, Stats.; third, an implied warranty under the provisions of sec. 1G84Í — 13, Stats. The first of these has been disposed of adversely to the plaintiff by the jury in their answers to the second and third questions in the special verdict, the court charging them that they were to determine in these two questions whether defendants made any warranty by Avord of mouth, and that was to be determined by the evidence outside of what was contained in the bond, and that the effect of the bond upon the rights of the parties was a question for the court. These two questions, therefore, have no bearing upon the second and third ways stated above in which defendants could be bound by a warranty of title.

Under sec. 1684i — 12 any affirmation of fact by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods and if the buyer purchases the goods relying thereon. The trial court evidently construed this undertaking as having no such statement of affirmation of fact as is specified in the preceding section of the statute. There is language from the undertaking considered as a whole from which it might reasonably be construed that the defendants positively asserted ownership of this cheese in themselves, viz. the recitals concerning “all persons interested in the oavu-ership of said cheese” taken in connection with the pretty positNe mark of identification as to who such persons were, shoAvn from the conceded fact that the defendants got the full market and purchase price. If the allegations of the bond are indefinite or ambiguous, the fact of taking the purchase price, to Avhich of course they had no shadow of right unless they had asserted some kind of OAvnership in the cheese, renders the language used a clear and definite assertion of owner*565ship sufficient to meet tbe call of the statute. The plaintiff testified that he relied upon defendants’ warranty in making the purchase. The testimony, however, being indefinite and uncertain as to what particular form of express warranty was meant by plaintiff, and the jury having negatived the making of any oral warranty, we do not dispose of the case upon this phase of it.

By sub. (1), sec. 1684i — 13, it is provided that in a contract of sale, unless a contrary intention appears, there is an implied warranty on the part of the seller that he has a right to sell the goods. By the third subdivision of the same section there is an implied warranty that the goods shall be free at the time of the sale from any charge or incumbrance in favor of any third person not declared or known to the buyer before or at the time when the sale is made.

The general rule is well established that there is an implied warranty of title in a sale of chattels in possession of the seller for a fair price where a contrary intention is not shown from the surrounding circumstances. Edgerton v. Michels, 66 Wis. 124, 131, 132, 26 N. W. 748, 28 N. W. 408; Shores L. Co. v. Claney, 102 Wis. 235, 239, 78 N. W. 451; 35 Cyc. 394. By sec. 1684t—13 no such condition of possession by the vendor at the time of sale is required, so that that does not affect the application of the rule of the statute and the decisions to this case.

Under the pleadings and testimony it is safe to assume that the agreement to sell was oral and was consummated by plaintiff paying the agreed price to defendants. There is nothing, therefore, shown as to the sale itself and nothing could be reasonably construed from the language of the bond indicating “a contrary intention” to the implied warranty of right to sell the goods fixed by sub. (1), see. 1684i — 13.

The bond in question is evidently not the agreement to sell itself, first, because it does not state the price nor the terms *566of tbe sale, and second, because from its language it evidently refers to some other agreement for sale than any embodied in its own terms.

Tbe defendants cannot be relieved from liability by tbe third subsection of sec. 1684Í — 13, quoted above, for it is manifest that tbe intent of tbe bond was for tbe very purpose of securing plaintiff against tbe claims of Bamford or tbe Eirst National Bank, and it cannot, therefore, be construed ns showing any “contrary intention” to tbe implied warranty.

That tbe condition of tbe bond was not drawn to meet tbe happening of tbe unexpected, namely, that tbe cheese would be taken by tbe bank without resorting to legal process, so that tbe action to be brought would have to be begun by plaintiff instead of defended by him, could not now make that document spell out a meaning which would be exactly contrary to its evident meaning at tbe time it was executed.

Tbe allegations in tbe answer that defendants’ attorneys informed plaintiff that be ought to bring replevin for tbe ■cheese, and that if they, defendants’ attorneys, were permitted to carry on such action it would be without cost to plaintiff, and tbe testimony of defendants’ attorney on tbe trial to tbe same effect, shows tbe practical construction put by tbe parties on tbe evident intent and meaning of tbe bond, viz. that it was to secure plaintiff against claims, in whatever form made, that were contrary to defendants’ assertion of ■ownership.

Tbe contract for tbe sale itself being separate and distinct from tbe bond, there is no room for tbe application of tbe rule in tbe cases relied upon by respondents that where there is a written contract of such sale with an express warranty, oilier than such warranty as the law implies, no other or different warranty can be proven by parol. McQuaid v. Ross, 77 Wis. 470, 473, 46 N. W. 892; J. I. Case P. Works v. Niles & Scott Co. 90 Wis. 590, 604, 63 N. W. 1013.

The question in this case really is whether plaintiff, when Ee paid the defendants full market price, purchased cheese *567or a lawsuit. If be bought the cheese, there was by law an implied warranty of right to sell in the vendors; if it was intended by the parties that he was to purchase all the possibilities of a lawsuit, then the bond was inconsistent with such purpose. If the purpose of the bond was to limit the form of the lawsuit which defendants undertook to assume the care and expense of, then such limitation in no wise contradicts the implied warranty of title under the statute, and questions concerning the same could only come up if suit were brought upon the bond.

The uncontradicted evidence shows that the warehouse receipt given by plaintiff to the bank at the time of the taking possession of the warehouse was without consideration and in no wise altered the respective positions of the parties to this action, except as it might affect the right to bring a suit on the bond; but, that not being before us, the giving of the receipt is entirely immaterial.

Under the record, no proof having been offered by plaintiff to controvert the allegations of the answer of the defendant Christie Walker as administratrix of the estate of Frank Walker, no judgment could be entered against her, and as to her the action must be dismissed with costs, and, except as to her, plaintiff’s motion for judgment should have been granted against the other defendants.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint as to the defendant Christie Walker and to enter judgment in favor of plaintiff against the other defendants for the amount claimed.

(dissenting). I confess that I cannot understand the reasoning upon which the decision is based. To me the evidence tells a very plain and simple story. The parties on both sides knew that there was a dispute as to the title of this cheese and that the bank claimed to own it. The plaintiff had in fact gone so far as to acknowledge the bank’s title by giving a warehouse receipt therefor to the bank when *568lie took possession of the storehouse. So when the parties met to negotiate for tbe sale there was no misapprehension .about the situation; the plaintiff knew that the defendants claimed title as the original manufacturers of the cheese, and that the bank claimed title through Bamford, in whose hands the defendants had placed it.

The subject as to what remedy the plaintiff should have in case the defendants’ claim of title proved invalid was discussed, and it was finally agreed that the defendants should .give the bond or undertaking set forth in the statement of facts. Had this bond been signed by sureties there would be logical ground for the conclusion that it was given to increase ■the plaintiff’s security, but it was not. It was signed only by the parties who claimed to own the cheese. These parties would all be liable for the valué of the cheese on their implied warranty had nothing been said about security, and this liability would not depend on the successful results of an action ■of replevin or trover. The liability on the bond, therefore, is a limited liability, considerably more restricted though included in the liability resulting from implied warranty of title.

It is a familiar legal principle that the giving of express limited warranties excludes and negatives the idea that more comprehensive warranties were intended “and repels any implication of law to that effect.” J. I. Case P. Works v. Niles & Scott Co. 90 Wis. 590, 63 N. W. 1013. Hence there was no implied warranty here, because the “contrary intention .appears,” and in such cases the statute in express terms declares that there is no implied warranty. Sec. 1684i — 13, 'Stats.

Furthermore, in the present case the jury found that the •defendants did not intend that there should be any warranty outside of the bond. Perhaps the defendants’ contrary intention alone would not be a “contrary intention” within the •meaning of the statute, but if a contrary intention on the part •of both plaintiff and defendants was necessary it must be as-*569stimed under tbe statute (in support of tbe judgment) tbat tbe court found a contrary intention on tbe part of tbe plaintiff as well, no question covering tbis subject having been proposed for submission to the jury by either party. Sec. 2858m, Stats.

So tbe result is tbat, even if it be held tbat tbe giving of the bond does not show tbe “contrary intention” required by tbe statute, but tbat such intention must be otherwise proven, in tbe present case it ivas otherwise proven and found by tbe verdict of tbe jury supplemented by tbe presumed finding of tbe court.