#### John D. Coleman, Appellant, *v.*Simpson, Hendee & Company, Respondent.

Second Department,

May 15, 1914.

Sale—express warranty as to quality of seed oats — evidence.

Where, in an action to recover damages for a breach of warranty on the sale of oats, the plaintiff claimed that the oats sent to him were “ sulphured,” evidence that the vendor in confirming the oral contract stated that the oats were “tested seed oats,” and the evidence of experts that “a sulphured oat” would not be regarded as a “seed oat” constitutes *prima facie*proof of an express warranty and a nonsuit should not be granted.

Appeal by the plaintiff, John D. Coleman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 11th day of December, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

*Morschauser & Mack,*for the appellant.

*Schuyler C. Carlton,*for the respondent.

Jenks, P. J.:

This action is brought by a feed merchant to recover damages for a breach of warranty in the sale of a carload of oats. The alleged contract was oral.

The rule whether an affirmation may be held as an express *336warranty is stated admirably in Benjamin on Sales (7th ed. p. 612) as follows: “And in determining whether it was so intended, a decisive test is, whether the vendor assumes to assert a *fact*of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion, and to exercise his judgment. In the former case there is a warranty, in the latter not.” At the close of plaintiff’s case there was proof that the plaintiff requested defendant’s selling agent to furnish “ Northern grown seed oats,” saying that he desired something nice and would pay a premium over and above the price for seed oats, that the agent answered that they had them, that he would see to it that the plaintiff would receive a nice carload, that the plaintiff further said that he wished to obtain the oats for seed — to sell them to his farmers and customers; that the plaintiff complained of certain defects in a consignment of oats in the year before and reiterated that he must have something nice, for his “ farmers were cranks on seed oats and must have some. ” Evidence was also adduced that on the next day the agent came to the plaintiff to give confirmation that the oats were tested seed oats and also that a paper received from the agent’s principals in confirmation contained the words “ one car of tested seed oats.” Two witnesses, called as experts, testified that the words “seed oats” meant in the trade “any selected natural oat — nothing taken from nor added to” — natural oats just as grown, and that “ a sulphured oat ” (plaintiff’s contention was that the oats sent to him were ‘c sulphured ”) would not be regarded in the trade as a “ seed oat.”' I think that there was *prima facie*proof of an express warranty, and hence that the plaintiff should not have been nonsuited. *(Van Wyck*v. *Allen,*6 Daly, 376; affd., 69 N. Y. 61; *White*v. *Miller,*71 id. 118; *Prentice*v. *Fargo,*53 App. Div. 608; affd., 173 N. Y. 593; *Landreth*v. *Wyckoff,*67 App. Div. 146; *Wolcott, Johnson & Co.*v. *Mount,*38 N. J. L. 496.)

The judgment is reversed and a new trial is granted, costs to abide the event.

Rich and Stapleton, JJ., concurred; Carr, J., concurred in separate opinion, with whom Burr, J., concurred.

*337Carr, J.

(concurring):

On the former trial of this action the question of an implied warranty was submitted to the jury and that of an express warranty was withdrawn from them by the trial court. It was held on appeal that the proofs did not justify the finding of an implied warranty, and the judgment was reversed. (158 App. Div. 461.) On that trial the only evidence as to the trade meaning of the words “seed oats” was given by the defense, and remained uncontradicted. We were of opinion that under the proofs so given the oats delivered by the defendant answered to the description of “seed oats.” On the new trial, however, the plaintiff has given some evidence that “sulphured oats” would not correspond to the trade description of “ seed oats.” This fact distinguishes the present appeal from that before us formerly. I will not contend with my brother Jerks whether this circumstance results in a breach of an express warranty, for in any event it tends to show a breach of at least an implied warranty of correspondence between the thing bought by description and the thing delivered. (See cases cited in former opinion.) I concur for reversal and a new trial.

Burr, J., concurred.

Judgment reversed and new trial granted, costs to abide the event.