#### MONEY v. FISHER.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Sale—Warranty.

Where a buyer asks the seller if a bull offered for sale is “fat and all right,” agreeing to purchase it on that condition only, to which question the seller answers, “Yes,” such answer is a warranty that the animal is as represented.

2. Trial—Disregarding Evidence.

The jury cannot arbitrarily disregard undisputed evidence which is neither contradictory nor improbable.

Appeal from Onondaga county court.

Action by David Money against John Fisher, Jr. From a judgment reversing the judgment of the justice in favor of plaintiff for $20.40 damages and $5 costs, plaintiff appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

S. M. Stevens, for appellant.

E. 0. Worden, for respondent.

PER CURIAM.

This action was to recover the purchase price of a bull sold by the plaintiff to the defendant. The answer set up both an implied and an express warranty, its breach, and that the animal was valueless. As a result of the trial in the justice’s court the plaintiff recovered a judgment for the agreed price of the bull, with costs. On appeal, the county court reversed the judgment. As no opinion was written, we are unable to determine the particular ground upon which it was reversed. The appellant, how’ever, now contends that the court erred in reversing this judgment because (1) there was no implied warranty; and (2) there was no express warranty. If this bull was sold as an article of food for domestic use, the law would imply a warranty that it was fit for that purpose. Whether the sale in this case falls within that principle is not wholly free from doubt, and with our views of the question of' express warranty we deem it unnecessary to decide that question. We think the undisputed evidence in the case shows conclusively that the plaintiff expressly warranted the bull to be fat and all right. John Fisher,. Sr., who was the defendant’s agent, and acted for him, testified:

> “I bought the bull. Plaintiff came in one day and asked me if I wanted to buy a bull. I told him, ‘Yes,’ and made him an offer. I said I would pay two cents live weight, and four cents dressed, if the meat was fat and all right. He was satisfied, and brought him in alive.”

The plaintiff, who was sworn as a witness in his own behalf, on his cross-examination, testified:

> “I asked Mr. Beck what the price was. Fisher asked me if the bull was fat and all right. I said ‘Yes.’ ”

From this evidence but one conclusion can be fairly reached, and that is that at the time of the sale the plaintiff positively asserted that the bull was fat and all right. The evidence of the defendant’s agent shows that the offer made by him was based solely upon the *863fact that the bull was in the condition represented. No particular phraseology was necessary to constitute a warranty. Any assertion made by the plaintiff concerning this bull, if relied upon by the ■defendant, and understood by the parties as an absolute assertion, would amount to a warranty. That such was the character of the statements made by the plaintiff, and that they were relied upon by the defendant, is obvious, as the evidence shows that the defendant knew nothing of the animal purchased, and that the only offer made was upon the express provision that the animal was fat and all right. The evidence bearing upon this question, both that given by the plaintiff and that introduced by the defendant, being undisputed, not contradictory, unimpeached, and not improbable, it was the duty of the jury to give credit to such testimony, and it could not arbitrarily or capriciously disregard it. Hence, we think the county court was justified in reversing the judgment rendered in the justice’s court.

Judgment of the county court affirmed, with costs.