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.