The first exception taken was to the exclusion of certain statements, in reference to the sheep, made by the plaintiff in presence of William E. Morrill. These alleged representations were made a month before the contract of Nov. 30, was consummated. Testimony so remote and uncertain in its character was properly excluded.
Upon the point of warranty no error is perceived in the instructions given by the presiding Judge. It is contended, that the specific instructions which were requested upon this branch of the case, and which were withheld by the Court, should have been given; especially those contained in the following request: —**
“ If Bryant represented to Morrill that those ewe sheep would shear from throe to five pounds of wool per head, and that Morrill could pay for the sheep, by the wool from the sheep in two years, and have wool left, and also, that the sheep were young, healthy and would winter well, and made these representations in good faith, and they were *18untrue, and made as an inducement to the sale, these representations would imply a warranty to the extent of them.”
It is not always easy to determine whether certain language does or does not imply a warranty,- much will depend upon the situation of the parties, and the condition of things when the language is used, and to which it will apply.
It is certain that the word warrant need not be used, nor any other of precisely the same meaning. It is enough if the words actually used impart an understanding on the part of the owner that the chattel is what it is represented to be; or an equivalent to such undertaking. 1 Parsons on Contracts, 463.
A warranty will not be implied from loose conversations between the vendor and vendee, in which the vendor may praise his goods, or express an opinion as to their qualities, or the advantages that may result to the vendee from the purchase. No expression of opinion, however strong, would import a warranty. But if the vendor, at the time of the sale, affirms a fact, as to the essential qualities of his goods in clear and definite language and the purchaser buys on the faith of such affirmation, that, we think, is an express warranty. Henshaw & al. v. Robbins, 9 Met. 83.
The declarations of Bryant as to the amount of wool the sheep would shear per head, the time in which Morrill could pay for the sheep, and whether he would have wool left after paying for them in a given time, are obviously matters of opinion, and must have been so' understood by the parties. They were mere speculations as to the future, of the correctness of which one could judge as well as .the other. They were not affirmations of existing facts in relation of the quality of the sheep. But the statement that the sheep were young and healthy was a representation of a different character, and such as, if made as an inducement to the sale, would strongly tend to prove an express warranty.
These various representations of the plaintiff were all grouped together in one request, and the Court was desired *19to give a particular construction to the whole, as matter of law. To have complied with such a request would have been erroneous. When parties incorporate into a request matter which is impertinent or improper, with other matter which is pertinent and proper, the Court will rightfully reject the whole. A Judge cannot be called upon to dissect a long request, presented perhaps, for the first time, while he is submitting a case to the jury, and select the sound from the unsound; giving the former to the jury and rejecting the latter. For this reason this request was properly withheld.
Pertinent and correct instructions were given upon the matters contained in the second and third requests.
The fourth request was properly declined. If a party uses language which imports a warranty, the presumption is, that he intends it as such. To have given the instruction as requested, would have tended to mislead the jury.
The fifth request was as follows: — The defendant contended and so requested the Court to instruct the jury, that the bill of sale of Aug. 26, 1850, if they believed the testimony of Nason, in relation to what Bryant said to him about having got his pay, and his testimony relating to said bill of sale, was evidence of payment in full of the contract of Nov. 30,1847. This was refused, and upon this point the Judge instructed the jury, that by the contract or bill of sale of August 26, 1850, from Morrill to plaintiff, the plaintiff would be liable only for what ho received, and had the beneficial use of, and not for what remaining in the hands of Morrill went to his use and benefit, and were disposed of without plaintiff’s consent. As to the oats, wheat, and corn not then harvested, the title to them did not pass by that instrument to the plaintiff, and he would be liable only for such portions of the same as actually went into his hands, and that as to the hay, Bryant was liable to account for only so much, if any, as he had the benefit of.
The refusal to give this instruction, when taken in connection with those actually given upon the same point, is worthy of consideration.
*20It will be observed that the paper in the case, dated August 26, 1850, does not purport to be a contract of sale from Morrill to Bryant. It is simply a receipt or contract of bailment given by Morrill to the plaintiff, in which he recites the terms of a contract made that day between the same parties. It is as follows : —
“Atkinson, Aug. 26, 1850.
“ In consideration of six hundred and sixty-three dollars and twenty-one hundredths, paid by Nathaniel Bryant of Dexter, I this day sold, transfern'ed and delivered to said Bryant of Dexter, the following personal property on my farm in Atkinson, viz.: — ” Then-follows a list of the property.
“ The paper concludes as follows: — “ Said property having been left iu my charge, I agree to keep the same safely, in good condition, all at my risk, and in case of loss or any deficiency in the oats, or wheat, or corn, or loss in any shape, I agree to pay the same to said Bryant, he having the right to take any part, or the whole of the same, at any time he may wish to do so.”
When this case was before the Court on a former occasion, 36 Maine, 563, some incidental remarks were made by the Judge, who drew the opinion, upon the character of the contract of Aug. 26, 1850. The case at that time, did not turn .upon any question arising out of that contract. The remarks then made upon that point may not, therefore, have received the consideration which would have been given them if the disposition of the case had depended upon the construction of this contract.
The Court, however, were then of opinion, that the contract of Aug. 26, 1850, was an absolute bill of sale, and could not be construed as a mortgage; that it did not appear by its terms to be in any way connected with the contract of Nov. 30, 1847, but that parol evidence would be admissible to show, that the property sold, or the agreed price of it, was to be applied in payment of the first contract.
*21Some confusion may have arisen in not keeping in view the distinction between the contract by which Morrill sold, transferred and delivered to Bryant certain property, and the receipt given by Morrill for that property in which he recites the terms of the former contract, and agrees to keep the property subject to the order of Bryant.
An important practical question is, what was the consideration paid for the transfer of the property on the 26th of Aug. 1850? The defendants say it was the payment of the balance due on the first contract. The fact, that the consideration was the precise amount found due by the parties on the old contract, on that day, is significant and would, perhaps, under the circumstances when taken in connection with the testimony of Nason, authorize such an inference. If such was the fact, the result would be that the original contract was paid thereby, unless there was some reason to prevent the sale of Aug. 26, 1850, from being fully executed.
Did that property pass ? The receipt shows a valuable consideration, and recites that it was sold, transferred and delivered. This receipt was signed by Morrill, and comes from the possession of Bryant. There is no evidence in the case tending to show that it was given by mistake, or that any of the recitations therein are untrue.
But it is contended that the oats, wheat, and corn, not then harvested, did not pass by that contract. So far as the corn is concerned, there is now no controversy, as more was after-wards delivered, as appears by entries on the back of the receipt, than was included in the contract.
Under what circumstances growing or standing crops can be passed between vendor and vendee, has frequently been considered by courts of law.
In Crosby v. Wadsworth, 6 East, 602, it was held that a crop of growing grass was such an interest in and concerning land as to bring it within the statute of frauds and to require the contract to be in writing.
In Parker v. Stainland, 10 East, 562, it was decided that *22a cr.op of potatoes, which were in a condition to be harvest, ed, were chattels, and would pass by parol. Bailey, J., in this case remarked, that “ in the cases of Crosby v. Wadsworth, and Waddington v. Bristowe, the contracts were made for growing crops of grass and hops, and therefore the purchaser of the crops had an intermediate interest in the land while the crops were growing to maturity, before they were gathered; but here the land was considered as a mere warehouse for the potatoes till the defendant could remove them, which he was to do immediately.
In Warwick v. Bruce, 2 M. & S. 205, which was also for a sale of potatoes, Lord Ellenboro’ remarked, “here is a contract for the sale of potatoes at so much per acre; the potatoes are the subject matter of the sale, and whether at the time of the sale they were covered with the earth in the field, or in a box, still it was a sale of a mere chattel.”
In Whipple v. Foot, 2 Johns. 418, it was decided that wheat growing on the ground, was a chattel, and as such, subject to be taken on execution; and in Newcomb & al. v. Ramer, cited in a note in 2 Johns. 421, it was held that a crop of growing wheat would pass by parol.
In Whitmarsh v. Walker, 1 Met. 313, it was held- that an oral agreement for the sale of mulberry trees growing in a nursery, and raised to be sold and transported, would be valid without writing.
In Cutler v. Pope, 13 Maine, 311, it was decided that grass already grown, and in condition to cut, may be sold by parol; and there is no objection to such sale, arising from the statute of frauds.
Numerous other cases might be cited, in which the principles in the cases above have been adopted with different degrees of modification. The cases in New York go the full length of sustaining the sale of growing crops as chattels. In England and in this State, the courts have not extended the principle, in terms, so far, though cases may be found, which by analogy, fall very little short of the rule established in New York.
*23But the application of the rule which hag been adopted in this State, will be decisive of this case. The oats and wheat wore not only grown and in condition to bo cut, but a portion of the oats had actually been harvested. The corn was subsequently all delivered with an additional quantity. The quantity was determined by estimation. There was therefore nothing in the nature or situation of the property to prevent it from passing by parol. Cutler v. Pope, 33 Maine, 377.
But if the property were within the statute of frauds the result would be the same, because the testimony of Neal would certainly authorize the inference, that the contract of sale was in writing. If it should be contended, that the paper in the case, dated Aug. 2G, 1850, is the only contract of sale, the answer is still the same, that being also in writing.
Nor can there be any objection on the ground, that the sale was not fully consummated, that something further remained to be done by the vendor. The consideration was paid ; the property designated arid delivered. The fact, that Bryaut desired a particular disposition of the property subsequent to the sale to him, and that he made an arrangement with Morrill to take charge of the property and keep it for him, can have no effect upon the sale. For that purpose he could contract with Morrill in the same manner and with the same legal effect as with any other party. And in neither case would the contract of bailment affect the prior contract of sale. So, also, as to the hay in the barn, there is no reason perceived why it did not pass by the sale.
On these points wo think the instructions were erroneous, and for this reason there must be a new trial.
If the jury shall find the recitations of a sale, contained in the paper dated Aug. 26, 1850, arc correct, and that the consideration for that sale was the balance duo on the original contract, the result must be that that contract was thereby paid and discharged, and that this action cannot be maintained.
Exceptions sustained, verdict
set aside and new trial granted.