PiNNEY, J.
1. The special contract set out in the complaint having been rescinded, leaving the boiler in question in the defendant’s possession as his own property, that contract is eliminated from the case as a foundation for any recovery. The plaintiff is forced to and does rely only on the express warranty of fitness made after such test, in September, 1889, when the boiler was sold and delivered to him, many months after he had refused to take it, and *235after the contract under which it was manufactured had been rescinded. It is found by the jury that the defendant represented at that time that the boiler was fit and suitable to be used in the plaintiff’s machine-shop. It would appear from the second finding that the plaintiff had inspected or examined the boiler when it was tested, and that he refused to take it under the written contract so rescinded. This seems to be a fair inference from the findings ; and, assuming it as true, the rule of caveat emptor would apply, and admit of no exception by implied warranty of quality. 2 Benj. Sales, § 966.
2. The law seems to be well settled that a positive representation with respect to the quality or fitness of property sold, made by the vendor and relied on at the time of the sale, amounts to a warranty; and effect ought to be given to a representation so made according to what the parties must fairly have understood by it. Any assertion by the seller to the purchaser during the negotiations to effect a sale, respecting the quality of the article or the efficiency of the property sold, will amount to a warranty if relied upon by the purchaser in making the purchase. Smith v. Justice, 13 Wis. 602 ; White v. Stelloh, 74 Wis. 438; Neave v. Arntz, 56 Wis. 176, and cases there cited. The representation found to have been made by the defendant to the plaintiff is, we think, within these authorities, an express warranty.
3. The difficulty with the plaintiff’s case is that there is no finding to show that the breaking of the boiler and consequent damage was the result of any defect in the boiler covered by the warranty, for which the defendant was responsible. It may have been the result of the plaintiff’s negligence in its use, or of an accident, or the result of defects known to the plaintiff at the time of purchase, or so obvious as to have been discoverable by careless inspection, and which wouhlnot be within the warranty. Story, Sales, *236§ 354; Buffalo B. W. Co. v. Phillips, 67 Wis. 129. In fact, there is no finding upon this material part of the case, showing what caused the breaking of the boiler and the consequent damages. When the court below heard and denied the plaintiff’s application for judgment, and rendered judgment in favor of the defendant, appealed from, it had before it all the evidence given on the trial, and its action must be considered as based on the record and minutes of the 1/rial. And while the existing practice in respect to special verdicts in cases where the verdict does not find on all the issues allows the court to supply such defects by acting on the uncontradicted evidence in the case in rendering judgment (Munkwitz v. Uhlig, 64 Wis. 380; Weisel v. Spence, 59 Wis. 301, and cases cited; Hutchinson v. C. & N. W. R. Co. 41 Wis. 541), the fact that there is no bill of exceptions making the evidence a part of the record renders it impossible for the appellant to maintain, or for this court to say, that the circuit court erred in refusing to give judgment for the plaintiff, or in rendering judgment for the defendant. Error will not be presumed. It must be shown affirmatively. The presumption is in favor of the correctness of the action of the court below, until the contrary is shown by the record. For these reasons the judgment of the circuit court must be affirmed.
By the Court.— The judgment of the circuit court is affirmed.